I had good responses to my previous post about noncompetes, some of which asked me to fill in the blank I intentionally left: What happens when there's a "choice of law" provision in the noncompete or anti-solicitation agreement? Will the agreement be enforced?
This gets very complicated, so it's best to start off with an understanding of what a "choice of law" provision is.
Every state has its own set of laws. The laws of one state may be quite different from the laws of another. When two parties sign a contract, it will usually be interpreted under the law of the state where the contract was formed.
When signing a contract, though, the parties can agree that a different state's laws will apply. Usually, the different state will have some connection to one of the parties. So if party A, for example, is a California worker, and party B is a Minnesota employer, the parties could include a "choice of law" provision in the employment contract that it will be interpreted under Minnesota law.
So here's the issue: what happens when the contract is with an employee in California, where covenants not to compete are illegal, but includes a choice of law provision to be interpreted under the laws of Minnesota, where they are legal?
The answer as to whether it will be legal or not depends on who gets a judgment from a court of law first.
California has declared that its policy against noncompetes and anti-solicitation agreements is so strong that it won't enforce one *even when there's a choice of law provision applying another state's laws.* In other words, if the contract with a noncompete stating that is will be interpreted under Minnesota law is brought in a California court, it will still be found to be illegal.
There's a catch, however. Let's say the employer brings a lawsuit in Minnesota, asking the court to prevent the employee from working for a competitor and to enforce its noncompete. Minnesota will honor such a noncompete (if it complies with the "rule of reasonableness" that I discussed in my last post), and issue such an order.
Now, if Minnesota enters its order *before* a California court can enter its order, California *will honor the Minnesota ruling* and require the employee to follow it. This is called the "rule of comity," in which one state will honor the rulings of a sister state, even if the one state would not have come to the same conclusion.
In other words, California has established the need for a race to judgment when it comes to noncompetes and anti-solicitation agreements. California has decided that whoever gets their judgment first wins.
This is bad policy, because it actually encourages people and companies to sue each other. I've even been in the position of telling employees that they might have to consider a preemptive lawsuit when these issues have come up. Nonetheless, this is the current state of the law in California.
Conflicts among state's laws often create challenging legal problems and bizarre results. This is an example, and California's solution creates a lot of practical difficulties.
Thursday, February 27, 2014
Tuesday, February 25, 2014
Healthy Rivalries: NonCompetition and Anti-Solicitation Agreements in California
Many of us have seen them: noncompetition and anti-solicitation agreements that are built into our employment contracts. They tell us that, when we leave or are fired and for maybe a year or two afterward, we can't work for a competing business. Maybe they tell us that we can't solicit our employer's clients when we leave.
Because we need the job, we try not to think too much about it when we sign. Years later, when we leave for another company, or maybe when we're fired, or maybe when we leave to start our own business, we wonder if that agreement will come back to haunt us. Can we work somewhere else? Can we compete for business? Can we even make a living now? Are we going to get sued?
For more than 150 years, California has held that noncompetition agreements are illegal, with only a couple of exceptions. (Those exceptions include the sale of the goodwill or ownership of a business or its operating assets, as well as the dissolution of a partnership.) So far as I know, California is the only state in the union with this virtually absolute prohibition. Other states have what is called the "rule of reasonableness," meaning that, if the noncompetition agreement is reasonable in time (say, a year or two, though some have held that 5 years or more is reasonable; imagine going 1 year, let along 5 years, without being able to ply your trade!) and space (meaning limited in geographical location, say to a city or county), then it will be enforced.
Not so in California. Noncompetition agreements in California are void, unenforceable, and even illegal, regardless of whether they are "reasonable" or not. The "rule of reasonableness" has been completely rejected in California.
In other words, you are always (with the minor exceptions noted above, and possibly the "choice of law" issue discussed below) free to work wherever you want in California.
Sometimes, employers complain that their former employees will inevitably use their trade secrets when they work elsewhere. In other words, the former employee can't help but use the secret information that they learned at their previous employer in their new job.
Again, California has completely rejected the "inevitable use" argument. To keep you from working elsewhere, the employer must show that you actually have improperly used trade secrets. Claiming that you inevitably will can't prevent you from working elsewhere.
Anti-solicitation agreements are also generally illegal. You can even solicit your former employer's customers, regardless of what you signed with your former employer. This is especially important for sales people, who spend their careers building relationships and customer lists. The only restriction is that you cannot use your former employer's trade secrets in doing so. (Some cases have held that you can't use "confidential or proprietary" information either, but those terms have never been defined, and the trend is away from that.)
So what's a "trade secret?"
A trade secret is defined as having two parts: (a) it must be the subject of reasonable efforts to keep it secret, and (b) it must derive value from the fact of being secret. Examples might include computer algorithms or software code, specific pricing information, or even hiring and training practices.
Customer lists are almost never trade secrets, although they are the things that I see employers most often claim to be trade secrets. That's because they're valuable, and so they want to keep you from using them.
It's usually pretty easy to demonstrate that customer lists aren't actually trade secrets. Employers frequently post testimonials or lists of their customers on their websites, for example. If it's not a secret, it sure isn't a trade secret.
Does all of this mean you won't be sued if you go work elsewhere? Unfortunately, it doesn't mean that. Employers who are ill-informed, or even misinformed by their own attorneys unfamiliar with this law, may seek to enforce an illegal noncompetition or anti-solicitation agreement by suing you. If that happens, it's important to contact an attorney immediately. Don't wait -- the first thing they usually do is write a letter, but then they may file for a temporary restraining order (TRO) to prevent you from working in your new place. Don't bury your head in the sand. Get an attorney quickly. A well-written, well-informed letter can often get rid of the lawsuit all by itself. If it doesn't, you'll want a good attorney on your side to ensure you can keep making a living.
Sometimes, there are "choice of law" provisions in these contracts. That means that you agreed to have the law of the sovereign state of EmployerFriendlyScrewTheWorkers apply to you. This gets very complicated, it's beyond the scope of this quick blog post, and you'll need an experienced attorney to figure it out for you.
But how will you pay an attorney to help you out? If you've found a new place to work, your new employer may be required by Ca. Lab. Code §2802 to defend you against such a lawsuit. Furthermore, recent caselaw has held that it would be illegal for your new employer to fire you just because a former employer is trying to enforce an illegal noncompetition agreement or anti-solicitation agreement.
Even though these agreements are generally illegal, I still see them all the time in employment contracts. It's important to know what you can do and what you can't if you've signed one of them.
Because we need the job, we try not to think too much about it when we sign. Years later, when we leave for another company, or maybe when we're fired, or maybe when we leave to start our own business, we wonder if that agreement will come back to haunt us. Can we work somewhere else? Can we compete for business? Can we even make a living now? Are we going to get sued?
For more than 150 years, California has held that noncompetition agreements are illegal, with only a couple of exceptions. (Those exceptions include the sale of the goodwill or ownership of a business or its operating assets, as well as the dissolution of a partnership.) So far as I know, California is the only state in the union with this virtually absolute prohibition. Other states have what is called the "rule of reasonableness," meaning that, if the noncompetition agreement is reasonable in time (say, a year or two, though some have held that 5 years or more is reasonable; imagine going 1 year, let along 5 years, without being able to ply your trade!) and space (meaning limited in geographical location, say to a city or county), then it will be enforced.
Not so in California. Noncompetition agreements in California are void, unenforceable, and even illegal, regardless of whether they are "reasonable" or not. The "rule of reasonableness" has been completely rejected in California.
In other words, you are always (with the minor exceptions noted above, and possibly the "choice of law" issue discussed below) free to work wherever you want in California.
Sometimes, employers complain that their former employees will inevitably use their trade secrets when they work elsewhere. In other words, the former employee can't help but use the secret information that they learned at their previous employer in their new job.
Again, California has completely rejected the "inevitable use" argument. To keep you from working elsewhere, the employer must show that you actually have improperly used trade secrets. Claiming that you inevitably will can't prevent you from working elsewhere.
Anti-solicitation agreements are also generally illegal. You can even solicit your former employer's customers, regardless of what you signed with your former employer. This is especially important for sales people, who spend their careers building relationships and customer lists. The only restriction is that you cannot use your former employer's trade secrets in doing so. (Some cases have held that you can't use "confidential or proprietary" information either, but those terms have never been defined, and the trend is away from that.)
So what's a "trade secret?"
A trade secret is defined as having two parts: (a) it must be the subject of reasonable efforts to keep it secret, and (b) it must derive value from the fact of being secret. Examples might include computer algorithms or software code, specific pricing information, or even hiring and training practices.
Customer lists are almost never trade secrets, although they are the things that I see employers most often claim to be trade secrets. That's because they're valuable, and so they want to keep you from using them.
It's usually pretty easy to demonstrate that customer lists aren't actually trade secrets. Employers frequently post testimonials or lists of their customers on their websites, for example. If it's not a secret, it sure isn't a trade secret.
Does all of this mean you won't be sued if you go work elsewhere? Unfortunately, it doesn't mean that. Employers who are ill-informed, or even misinformed by their own attorneys unfamiliar with this law, may seek to enforce an illegal noncompetition or anti-solicitation agreement by suing you. If that happens, it's important to contact an attorney immediately. Don't wait -- the first thing they usually do is write a letter, but then they may file for a temporary restraining order (TRO) to prevent you from working in your new place. Don't bury your head in the sand. Get an attorney quickly. A well-written, well-informed letter can often get rid of the lawsuit all by itself. If it doesn't, you'll want a good attorney on your side to ensure you can keep making a living.
Sometimes, there are "choice of law" provisions in these contracts. That means that you agreed to have the law of the sovereign state of EmployerFriendlyScrewTheWorkers apply to you. This gets very complicated, it's beyond the scope of this quick blog post, and you'll need an experienced attorney to figure it out for you.
But how will you pay an attorney to help you out? If you've found a new place to work, your new employer may be required by Ca. Lab. Code §2802 to defend you against such a lawsuit. Furthermore, recent caselaw has held that it would be illegal for your new employer to fire you just because a former employer is trying to enforce an illegal noncompetition agreement or anti-solicitation agreement.
Even though these agreements are generally illegal, I still see them all the time in employment contracts. It's important to know what you can do and what you can't if you've signed one of them.
Thursday, February 6, 2014
Disability Rights -- "Reasonable" is Written Right into the Law
The laws protecting disabled employees in the workplace aren't that complicated, and they're not onerous. In fact, the law uses the word "reasonable" over and over again to describe the protections afforded disabled workers.
California and federal law are very different in this area. Although California's Fair Employment & Housing Act ("FEHA") was modeled after the federal Americans with Disabilities Act ("ADA"), the FEHA has developed much differently through the years. So throughout this post, I'll be talking about the FEHA. Just be aware that the ADA may be substantially different.
First of all, what does it mean to have a disability? The FEHA defines a disability as any physical or mental impairment that limits a major life activity. (This is the first big difference between FEHA and ADA. The ADA requires that the impairment "substantially limit" a major life activity. An amendment to the FEHA removed the word "substantially," and now requires only a limitation.) Major life activities include walking, talking, breathing, digesting, and a host of others.
Much like race, age, sex, religion, and other protected characteristics, an employer can't discriminate against an employee because of a disability. That *doesn't* mean the employer can't fire someone with a disability; it means the employer can't fire someone *because* of a disability. If a disabled worker is doing poor work, he can be fired just like anyone else.
The law gets more involved when it comes to accommodating an employee with a disability. Any employee qualified to do the job must be provided a reasonable accommodation if it can be done without undue hardship to the employer.
That's just one sentence, but there's a lot to it. Starting at the beginning, a "qualified employee" is one who can perform the primary functions of the job with or without a reasonable accommodation. "Primary functions" don't include remote or trivial functions. For example, the primary functions of an outside salesperson might include driving to meet with customers, or entering sales information in a spreadsheet. For an outside salesperson, sweeping the floors or closing the shop at night might not be primary functions. "Primary functions" are determined based on what the employee actually does on a day-to-day basis, not just on what's in the job description.
The law protects employers, as well as employees, by requiring that the employee be able to perform those primary functions. In other words, if a disabled employee can't perform the primary functions of the job, the employer is free to fire that employee.
Before doing so, however, the employer must find out if a reasonable accommodation is available that could help the employee perform the job's primary functions. For example, suppose our outside salesperson had arthritis, which impacted the major life activities of grasping and holding objects. Arthritis probably qualifies as a disability (whether it does or not depends on how it affects the particular individual, but let's assume here the effect is enough to qualify as a disability). Suppose also that this salesperson's arthritis prevented entering sales data into a spreadsheet, which we said before was a primary function of his job. Is there a reasonable accommodation that exists that could help that person do the job?
To find out, the employer must engage in what the law calls a "good faith, interactive process" (GFIP) with the employee. That essentially means they must talk with one another, in good faith, to see if there's some accommodation that will allow the disabled employee to do the job. For example, the employee might suggest that the company buy voice recognition software to help with the data entry. Perhaps a larger keyboard with bigger keys will allow the salesperson to type without pain.
It may be possible that an assistant could help the salesperson with data entry. If the employer is very small, it might conclude that hiring an assistant would be an undue hardship. The law looks at each individual case to determine what is reasonable under those particular circumstances.
The point of the law is to keep people with disabilities working to the extent that they can do the job and remain productive. The law is written to require employers and employees to interact to see what can be done to accomplish that goal. When both sides are reasonable, and engage in good faith, the law works well.
California and federal law are very different in this area. Although California's Fair Employment & Housing Act ("FEHA") was modeled after the federal Americans with Disabilities Act ("ADA"), the FEHA has developed much differently through the years. So throughout this post, I'll be talking about the FEHA. Just be aware that the ADA may be substantially different.
First of all, what does it mean to have a disability? The FEHA defines a disability as any physical or mental impairment that limits a major life activity. (This is the first big difference between FEHA and ADA. The ADA requires that the impairment "substantially limit" a major life activity. An amendment to the FEHA removed the word "substantially," and now requires only a limitation.) Major life activities include walking, talking, breathing, digesting, and a host of others.
Much like race, age, sex, religion, and other protected characteristics, an employer can't discriminate against an employee because of a disability. That *doesn't* mean the employer can't fire someone with a disability; it means the employer can't fire someone *because* of a disability. If a disabled worker is doing poor work, he can be fired just like anyone else.
The law gets more involved when it comes to accommodating an employee with a disability. Any employee qualified to do the job must be provided a reasonable accommodation if it can be done without undue hardship to the employer.
That's just one sentence, but there's a lot to it. Starting at the beginning, a "qualified employee" is one who can perform the primary functions of the job with or without a reasonable accommodation. "Primary functions" don't include remote or trivial functions. For example, the primary functions of an outside salesperson might include driving to meet with customers, or entering sales information in a spreadsheet. For an outside salesperson, sweeping the floors or closing the shop at night might not be primary functions. "Primary functions" are determined based on what the employee actually does on a day-to-day basis, not just on what's in the job description.
The law protects employers, as well as employees, by requiring that the employee be able to perform those primary functions. In other words, if a disabled employee can't perform the primary functions of the job, the employer is free to fire that employee.
Before doing so, however, the employer must find out if a reasonable accommodation is available that could help the employee perform the job's primary functions. For example, suppose our outside salesperson had arthritis, which impacted the major life activities of grasping and holding objects. Arthritis probably qualifies as a disability (whether it does or not depends on how it affects the particular individual, but let's assume here the effect is enough to qualify as a disability). Suppose also that this salesperson's arthritis prevented entering sales data into a spreadsheet, which we said before was a primary function of his job. Is there a reasonable accommodation that exists that could help that person do the job?
To find out, the employer must engage in what the law calls a "good faith, interactive process" (GFIP) with the employee. That essentially means they must talk with one another, in good faith, to see if there's some accommodation that will allow the disabled employee to do the job. For example, the employee might suggest that the company buy voice recognition software to help with the data entry. Perhaps a larger keyboard with bigger keys will allow the salesperson to type without pain.
It may be possible that an assistant could help the salesperson with data entry. If the employer is very small, it might conclude that hiring an assistant would be an undue hardship. The law looks at each individual case to determine what is reasonable under those particular circumstances.
The point of the law is to keep people with disabilities working to the extent that they can do the job and remain productive. The law is written to require employers and employees to interact to see what can be done to accomplish that goal. When both sides are reasonable, and engage in good faith, the law works well.
Wednesday, January 22, 2014
For the Record: Don't Record Without Permission
Many times, different areas of the law intersect. Most attorneys know just a little bit about tax law, so they can draft settlement agreements to their client's best advantage. I had a case in which I had to learn about family law and community property rules.
The most concerning employment cases, though, are those in which criminal law comes in to play.
Most of the time, when an former employee has taken a criminal act, he's unaware of it. The most common one that I see is secretly recording the former employer or other witnesses. Did you know that it can be a crime to record private conversations without the knowledge of the person you're recording?
This can be a difficult fact to swallow. Employees are rightly concerned about how they will prove their case, fully anticipating that their employers will just lie on the witness stand. So they hide a recorder on themselves, and put themselves in more hot water.
To make matters worse, the recording probably can't be used in court anyway.
Secret recordings are more subtle than some of the things ex-employees do. I've heard of people breaking and entering into their former employer to get documents, or physically attacking someone at their previous job site.
Taking any of these actions can put you and your attorney in a really tight spot. Your attorney can't allow you to perjure yourself, and so needs to be prepared to assert all of your rights, including your Fifth Amendment right against self-incrimination. You can imagine how well that goes over while your deposition is being taken.
The long and the short of it is: don't engage in these type of self-help measures without talking to your attorney first. Your attorney knows what you've been through, and is watching out for your best interests. Help him by following his advice.
The most concerning employment cases, though, are those in which criminal law comes in to play.
Most of the time, when an former employee has taken a criminal act, he's unaware of it. The most common one that I see is secretly recording the former employer or other witnesses. Did you know that it can be a crime to record private conversations without the knowledge of the person you're recording?
This can be a difficult fact to swallow. Employees are rightly concerned about how they will prove their case, fully anticipating that their employers will just lie on the witness stand. So they hide a recorder on themselves, and put themselves in more hot water.
To make matters worse, the recording probably can't be used in court anyway.
Secret recordings are more subtle than some of the things ex-employees do. I've heard of people breaking and entering into their former employer to get documents, or physically attacking someone at their previous job site.
Taking any of these actions can put you and your attorney in a really tight spot. Your attorney can't allow you to perjure yourself, and so needs to be prepared to assert all of your rights, including your Fifth Amendment right against self-incrimination. You can imagine how well that goes over while your deposition is being taken.
The long and the short of it is: don't engage in these type of self-help measures without talking to your attorney first. Your attorney knows what you've been through, and is watching out for your best interests. Help him by following his advice.
Thursday, December 12, 2013
Still the Best Policy
"Honesty never damages a cause that is just."
-- Mahatma Ghandi
Recently, a client mentioned to me a fact about his case that could reflect poorly on him. He asked me if, when testifying about it, he could say, "Well, the reason was X." My question: "Is X true?" He cast his eyes down, and admitted it wasn't. I told him he couldn't testify that it was.
Putting aside any ethical or moral issues, there are lots of practical reasons to be honest in litigation.
Many people say that the law isn't about a search for the truth. I think it is, and to prove it, there are plenty of ways the legal system seeks out and punishes the untruthful.
1. The Law's Gonna Getcha
For example, people or companies that file for bankruptcy have to list all of their assets so that the court can make determinations about their finances. Sometimes they don't list a pending lawsuit as an asset, even though they have a possibility of making money at it. If the civil court decides the omission was inadvertent or a mistake, no problem. But if the civil court decides it was intentional, it can throw out your lawsuit using a rule known as "estoppel." The judge isn't even required to give you a chance to explain yourself.
Another example: a couple gets divorced. During the proceedings, the husband states, under penalty of perjury, that he has no stock in the company where he's the CEO. When he's later fired, and sues for his millions of dollars in stock, the company shows him his prior statement in the divorce court. The CEO is out of luck.
In other words, the legal system requires honesty, and it imposes severe penalties if it finds someone hasn't lived up to that standard.
2. No One Will Believe You
This isn't just finger-wagging -- it's practical advice from a lawyer who has had clients torpedo their own cases by being dishonest. You have to assume the other side knows all the bad stuff about you, because they probably do. If you're caught in a lie, you may as well write the other side a big check, because it's going to cost you in terms of the value of your case.
In any employment case, the most important witness is always the plaintiff/ex-employee. Good facts are of course necessary, but it's also critical that the jury like you. And they will often hold you to a higher standard than they hold themselves, requiring a high degree of honesty before they will find in your favor. It's unfair, but this post is all about the practical benefits of honesty, not fairness.
3. Your Lawyer Will Look Bad
I always tell my clients: Tell me the bad facts. Don't let me be surprised by the other side. I can deal with any set of bad facts. What I can't deal with is being shown by the other attorneys that my client doesn't tell the truth.
When you hire a lawyer, you are depending on that person to bring about the best results for you. Your lawyer can't do that if you don't discuss everything, both good and bad, about your case. Hiding facts or lying about facts to your lawyer not only doesn't do any good -- remember, the other side probably knows about your concerns anyway -- but it will hurt your case by making it look like your lawyer doesn't understand the issues.
Whether the law is actually about the search for truth or not, it certainly tries to be, and it is unforgiving to lies both big and small. Owning up to bad facts, and being perceived as honest, just works a lot better.
-- Mahatma Ghandi
Recently, a client mentioned to me a fact about his case that could reflect poorly on him. He asked me if, when testifying about it, he could say, "Well, the reason was X." My question: "Is X true?" He cast his eyes down, and admitted it wasn't. I told him he couldn't testify that it was.
Putting aside any ethical or moral issues, there are lots of practical reasons to be honest in litigation.
Many people say that the law isn't about a search for the truth. I think it is, and to prove it, there are plenty of ways the legal system seeks out and punishes the untruthful.
1. The Law's Gonna Getcha
For example, people or companies that file for bankruptcy have to list all of their assets so that the court can make determinations about their finances. Sometimes they don't list a pending lawsuit as an asset, even though they have a possibility of making money at it. If the civil court decides the omission was inadvertent or a mistake, no problem. But if the civil court decides it was intentional, it can throw out your lawsuit using a rule known as "estoppel." The judge isn't even required to give you a chance to explain yourself.
Another example: a couple gets divorced. During the proceedings, the husband states, under penalty of perjury, that he has no stock in the company where he's the CEO. When he's later fired, and sues for his millions of dollars in stock, the company shows him his prior statement in the divorce court. The CEO is out of luck.
In other words, the legal system requires honesty, and it imposes severe penalties if it finds someone hasn't lived up to that standard.
2. No One Will Believe You
This isn't just finger-wagging -- it's practical advice from a lawyer who has had clients torpedo their own cases by being dishonest. You have to assume the other side knows all the bad stuff about you, because they probably do. If you're caught in a lie, you may as well write the other side a big check, because it's going to cost you in terms of the value of your case.
In any employment case, the most important witness is always the plaintiff/ex-employee. Good facts are of course necessary, but it's also critical that the jury like you. And they will often hold you to a higher standard than they hold themselves, requiring a high degree of honesty before they will find in your favor. It's unfair, but this post is all about the practical benefits of honesty, not fairness.
3. Your Lawyer Will Look Bad
I always tell my clients: Tell me the bad facts. Don't let me be surprised by the other side. I can deal with any set of bad facts. What I can't deal with is being shown by the other attorneys that my client doesn't tell the truth.
When you hire a lawyer, you are depending on that person to bring about the best results for you. Your lawyer can't do that if you don't discuss everything, both good and bad, about your case. Hiding facts or lying about facts to your lawyer not only doesn't do any good -- remember, the other side probably knows about your concerns anyway -- but it will hurt your case by making it look like your lawyer doesn't understand the issues.
Whether the law is actually about the search for truth or not, it certainly tries to be, and it is unforgiving to lies both big and small. Owning up to bad facts, and being perceived as honest, just works a lot better.
Monday, November 11, 2013
Simple Human Decency: A Rant on Unacceptable Racial Slurs
I'm going to discuss the recent news about the Miami Dolphins, and the words major league football player Richie Incognito said to fellow player Jonathan Martin. I'm using this incident to point out an important principle about simple human decency.
We'll call it The First Principle: It is never okay to insult someone with racial slurs. There are no circumstances and no context in which this is okay. It is always unacceptable.
That's so important, I'm going to say it again: IT IS ALWAYS UNACCEPTABLE TO INSULT SOMEONE WITH RACIAL SLURS.
With that out of the way, we should all feel some horror that Mr. Incognito and his enablers in the Miami Dolphins organization have tried to paint Mr. Martin as blameworthy somehow. Somehow, they've managed to convince a certain segment of the country to interpret Mr. Martin's decision not to comment as meaning that he brought on himself getting called a "half-n-gger" and having his "real mother" slapped across the face.
Now Mr. Incognito is working the talk shows, telling people he didn't mean to hurt Mr. Martin, and that he's not a racist, and sometimes Mr. Martin has used the term "n-gger" himself.
If you're disgusted by what Mr. Incognito is saying, I'm with you. If what he's saying sounds persuasive to you in any way, go back to The First Principle.
This incident has tapped into an ongoing debate about whether African-Americans can use the n-word when talking to each other (because Mr. Incognito brought that up as a justification for his own words). Unless you're African-American, you don't get to decide that. You get to have an opinion, but make sure that you understand that your opinion about it isn't really all that important. And whether it's okay or not for African-Americans to say it, it never, ever justifies the use of that racial slur by someone who is not an African-American.
I felt moved to write this entry because Mr. Incognito and Mr. Martin are co-workers. They're highly paid, high profile co-workers, but they're still co-workers. Mr. Incognito is paid a lot of money to play a game that children like to play in sandlots and on grass fields, but he attaches such importance to what he does for a living that he tries to justify his use of racist language in the spirit of building camaraderie and ultimate success on the football field. I think Mr. Incognito needs a little perspective.
Federal law prohibits harassing a co-worker on the basis of race, sex, religion, disability, and other protected characteristics. To violate the law, the harassment has to be so severe or pervasive that it fundamentally alters the nature of the workplace.
Nothing in the law requires that Mr. Incognito have "intended" to hurt anyone. Harassment (unlike discrimination) is viewed from the reasonable perspective of the harassed person.
Yet the statements Mr. Incognito and his Dolphin cohorts have been making are typical of the harasser's profile. Mr. Incognito says he's not a racist, which is irrelevant, because whether he's a racist or not, his words were unacceptably racist. He says we should examine his words in context, that Mr. Martin didn't mind in the past, and no one ever complained before.
In other words, he's saying that Mr. Martin didn't mind before; what's the big deal now?
In the real world, it sometimes takes a while for the abuse to build to the point that the victim finally objects. Pretending that the victim should always say something the first time he hears an ignorant slur is just nonsense. Worse, it's dangerous nonsense, because it allows the perpetrator to blame the victim for not getting offended fast enough.
Everyone has the right to work in a place that's free of illegal harassment, where you can do your job without abuse that's based on a protected characteristic. It's not just the law; it's simple human decency.
We'll call it The First Principle: It is never okay to insult someone with racial slurs. There are no circumstances and no context in which this is okay. It is always unacceptable.
That's so important, I'm going to say it again: IT IS ALWAYS UNACCEPTABLE TO INSULT SOMEONE WITH RACIAL SLURS.
With that out of the way, we should all feel some horror that Mr. Incognito and his enablers in the Miami Dolphins organization have tried to paint Mr. Martin as blameworthy somehow. Somehow, they've managed to convince a certain segment of the country to interpret Mr. Martin's decision not to comment as meaning that he brought on himself getting called a "half-n-gger" and having his "real mother" slapped across the face.
Now Mr. Incognito is working the talk shows, telling people he didn't mean to hurt Mr. Martin, and that he's not a racist, and sometimes Mr. Martin has used the term "n-gger" himself.
If you're disgusted by what Mr. Incognito is saying, I'm with you. If what he's saying sounds persuasive to you in any way, go back to The First Principle.
This incident has tapped into an ongoing debate about whether African-Americans can use the n-word when talking to each other (because Mr. Incognito brought that up as a justification for his own words). Unless you're African-American, you don't get to decide that. You get to have an opinion, but make sure that you understand that your opinion about it isn't really all that important. And whether it's okay or not for African-Americans to say it, it never, ever justifies the use of that racial slur by someone who is not an African-American.
I felt moved to write this entry because Mr. Incognito and Mr. Martin are co-workers. They're highly paid, high profile co-workers, but they're still co-workers. Mr. Incognito is paid a lot of money to play a game that children like to play in sandlots and on grass fields, but he attaches such importance to what he does for a living that he tries to justify his use of racist language in the spirit of building camaraderie and ultimate success on the football field. I think Mr. Incognito needs a little perspective.
Federal law prohibits harassing a co-worker on the basis of race, sex, religion, disability, and other protected characteristics. To violate the law, the harassment has to be so severe or pervasive that it fundamentally alters the nature of the workplace.
Nothing in the law requires that Mr. Incognito have "intended" to hurt anyone. Harassment (unlike discrimination) is viewed from the reasonable perspective of the harassed person.
Yet the statements Mr. Incognito and his Dolphin cohorts have been making are typical of the harasser's profile. Mr. Incognito says he's not a racist, which is irrelevant, because whether he's a racist or not, his words were unacceptably racist. He says we should examine his words in context, that Mr. Martin didn't mind in the past, and no one ever complained before.
In other words, he's saying that Mr. Martin didn't mind before; what's the big deal now?
In the real world, it sometimes takes a while for the abuse to build to the point that the victim finally objects. Pretending that the victim should always say something the first time he hears an ignorant slur is just nonsense. Worse, it's dangerous nonsense, because it allows the perpetrator to blame the victim for not getting offended fast enough.
Everyone has the right to work in a place that's free of illegal harassment, where you can do your job without abuse that's based on a protected characteristic. It's not just the law; it's simple human decency.
Sunday, November 3, 2013
What if your Job is in Jeopardy?
People frequently want to know what to do if they feel they're being illegally harassed at work, or if they think that they're about to get fired for an illegal reason. The answer depends on what your goal is, and what your particular situation is like.
First of all, remember that most types of workplace harassment are not illegal. Harassment is only illegal if it's based on a protected characteristic, like race, age, sex, religion, disability, or a handful of others. If you're being harassed at work, but it's not because of a protected characteristic (and you're not in a union), you probably have no legal recourse at all. Consider trying to address the problem internally, either with the person harassing you, that person's supervisor, or with human resources. Remember, though, that your complaints of legal, but harassing, activity can get you fired, and again, there's no legal recourse for that. So consider carefully whether what you're experiencing is something you can live with, or if you feel the need to do something about it at the risk of experiencing retaliation without recourse for you.
So let's assume for the moment that you feel you're being illegally harassed because of a protected characteristic, or that you think you're about to get fired for an illegal reason. What do you do about it?
My best advice is: Do what you can to address the situation, while keeping your job and avoiding a lawsuit. Sometimes that means looking for another place to work, and not saying anything until you've found one. Even if it's not the best thing for having a lawsuit later, the odds are good that you'd rather have a job than a lawsuit, especially in a rotten economy.
Look, the people who I help usually have no reasonable options available to them other than filing a lawsuit. They've been fired, or the illegal harassment they've suffered is so extreme that the law needs to address it. The legal system, however, needs to be looked at as a last resort. It's ugly, expensive, time-consuming, and your time and energy would be better spent finding a new job and getting on with your life, if you can manage it.
If you nonetheless feel the need to protect your legal rights, the first thing to do is to buy a journal. In that journal, write every harassing or discriminatory act as it occurs. I don't mean every sideways glance that your supervisor gives you (no one, including juries, likes a complainer), but things that actually affect you economically or extremely outrageous conduct. Don't write anything else in that journal; it may be shown to a jury in the future, so no doodles, no grocery lists, nothing like that. Make sure to take that journal home every night, because they have a way of disappearing when left at the office.
Also in that journal, write everything you remember that happened previously. Don't try to pretend that you're writing it as it happened; make it clear that you're recalling it as well as you can.
Consider making a complaint to the offending person or to that person's supervisor. If you're at this stage, consider making the complain in writing and keeping a copy. It is illegal to retaliate against you for complaining of an illegal act, but employers do illegal things all the time, and you'll want a written record that you actually made the complaint (employers' first line of defense in litigation: "We never got a complaint from that person.")
When I say "consider" doing these things, understand that I'm not telling you to do any of these things because I don't know your precise situation. There's no one answer that fits everyone.
If you feel your job is in jeopardy or you need to protect yourself legally, call an employment attorney immediately. That person will take the time to understand your circumstances, and give you the advice that's best for you.
Making a living is hard enough these days without feeling like your job is at stake. Make sure to protect your rights, do what you can to keep from getting fired, and try hard not to sue anybody. If it comes to that, though, know what you have to do to maximize your chances for coming out on top.
First of all, remember that most types of workplace harassment are not illegal. Harassment is only illegal if it's based on a protected characteristic, like race, age, sex, religion, disability, or a handful of others. If you're being harassed at work, but it's not because of a protected characteristic (and you're not in a union), you probably have no legal recourse at all. Consider trying to address the problem internally, either with the person harassing you, that person's supervisor, or with human resources. Remember, though, that your complaints of legal, but harassing, activity can get you fired, and again, there's no legal recourse for that. So consider carefully whether what you're experiencing is something you can live with, or if you feel the need to do something about it at the risk of experiencing retaliation without recourse for you.
So let's assume for the moment that you feel you're being illegally harassed because of a protected characteristic, or that you think you're about to get fired for an illegal reason. What do you do about it?
My best advice is: Do what you can to address the situation, while keeping your job and avoiding a lawsuit. Sometimes that means looking for another place to work, and not saying anything until you've found one. Even if it's not the best thing for having a lawsuit later, the odds are good that you'd rather have a job than a lawsuit, especially in a rotten economy.
Look, the people who I help usually have no reasonable options available to them other than filing a lawsuit. They've been fired, or the illegal harassment they've suffered is so extreme that the law needs to address it. The legal system, however, needs to be looked at as a last resort. It's ugly, expensive, time-consuming, and your time and energy would be better spent finding a new job and getting on with your life, if you can manage it.
If you nonetheless feel the need to protect your legal rights, the first thing to do is to buy a journal. In that journal, write every harassing or discriminatory act as it occurs. I don't mean every sideways glance that your supervisor gives you (no one, including juries, likes a complainer), but things that actually affect you economically or extremely outrageous conduct. Don't write anything else in that journal; it may be shown to a jury in the future, so no doodles, no grocery lists, nothing like that. Make sure to take that journal home every night, because they have a way of disappearing when left at the office.
Also in that journal, write everything you remember that happened previously. Don't try to pretend that you're writing it as it happened; make it clear that you're recalling it as well as you can.
Consider making a complaint to the offending person or to that person's supervisor. If you're at this stage, consider making the complain in writing and keeping a copy. It is illegal to retaliate against you for complaining of an illegal act, but employers do illegal things all the time, and you'll want a written record that you actually made the complaint (employers' first line of defense in litigation: "We never got a complaint from that person.")
When I say "consider" doing these things, understand that I'm not telling you to do any of these things because I don't know your precise situation. There's no one answer that fits everyone.
If you feel your job is in jeopardy or you need to protect yourself legally, call an employment attorney immediately. That person will take the time to understand your circumstances, and give you the advice that's best for you.
Making a living is hard enough these days without feeling like your job is at stake. Make sure to protect your rights, do what you can to keep from getting fired, and try hard not to sue anybody. If it comes to that, though, know what you have to do to maximize your chances for coming out on top.
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