NLRB rules that employers can't require laid-off staff to waive labor law rights
nlrb.gov
nlrb.gov
Your right to talk to a lawyer was never jeapordised. Your right to complain to the NLRB or threaten litigation/arbitration was also probably never in question. (Your claims may now be strengthened or expanded.) Your right to disclose it publicly, e.g. here, may not be protected.
but I cannot sign a contract to "sell myself back into slavery"???
McFerran is now the chairman, and Kaplan is still on the board. Ring and Emmanuel were replaced by David Prouty and Gwynne Wilcox, respectively. Both have union backgrounds.
I can't seem to find the original case to see the board make up then.
https://www.eeoc.gov/laws/guidance/qa-understanding-waivers-...
> The decision involved severance agreements offered to furloughed employees that prohibited them from making statements that could disparage the employer and from disclosing the terms of the agreement itself.
Was the agreement part of getting hired? or getting laid off?
That said, I suspect that this will result in a reduction of severance agreements since there is very little that the company can gain out of a severance agreement now (I am assuming this also extends to various "you can't sue the company for wrongful termination" and similar).
This wasn't the case from the establishment of the original precedent until 2020 when that ruling was reversed. We're simply going back to a state that has existed for decades, and in which severance agreements were by no means rare.
https://www.g-s-law.com/blog/disparagement-and-defamation-1-...
> Disparagement means anything negative statement about someone or something. So the non-disparagement provision in your employment agreement or severance agreement applies to any and every negative statement. It does not matter if the statement is true or not, opinion or fact. If your statement makes your employer look bad, it is disparagement.
If you have signed a non-disparagement agreement, the best advice is likely "decline to say anything about the subject."
Why? Because most of their income comes from the companies who front the fees for it. A company only fronts fees if they're more likely to win.
This isn't theoretical. It's a well known fact among employment law. Do not sign anything that causes disputes to move away from courts toward 3rd party arbitration. It's a sham.
Watch the video below. A lawyer details the whole thing:
As monksy says, arbitrators tend to grant smaller awards than juries. So for major cases, litigation is better. But arbitration is faster and cheaper for everyone. So for smaller claims (and I mean in litigation land, so under around $1mm) arbitration almost always increases options for consumers and usually does for employees.
Arbitration in the US to me (as someone who's had to deal with that shit in digital service EULAs since I'm not in the US) always comes across as signing away your left eye to get a discount on eye surgery on your right eye. Sure, there's some benefit to that discount, but you're trading one hell of a lot away.
It's also usually paired up with things like a class action waiver and other assorted crap that mostly seems to exist to give the company an non-negotiable legal advantage over the consumer/employee.
If we are going to talk about other countries—-they don’t have class actions or gigantic punitive damages awards. Lawsuits are by and large intended to compensate people for their losses rather than be a substitute regulatory regime as in the US. Consumer arbitration, in practice if not theory, is much closer to that.
So if the courts are so flawed why create an entire parallel system, funded by the richer parties? It reeks of selling justice. And the 'voluntary' opt out requires careful reading of lifetimes worth of text, postage, and repeating a bespoke process for every company one ever interacts with.
It all sounds to me like there is a bug in the kernel scheduler (judiciary) so dominant programs (say browsers) demand every app that interacts with them use their choice of user-space scheduler which the dominant party happens to have bankrolled. And all this instead of fixing the kernel.
Small claims are for small claims. No lawyers, no juries, no opinions; just a decision. Courts are great for large claims. Lawyers, juries and precedent-setting opinions.
In between are medium-sized claims where you want a lawyer but not a jury or opinion. (There are too many cases and they’re not individually worth it. If they’re worth it in aggregated, they should be certified as a class, something I don’t think one should be allowed to waive one’s right to.)
Arbitration emerged as a solution to claims too big and complex for small claims, but not worth litigating in court.
Perhaps we need medium claims court that can be independent, instead of a private system bought and paid for by the wealthier party.
These are separate issues.
Arbitration excels at medium-sized claims. Should it be a public function? Absolutely. But that recognises that it has a function distinct from small claims and general litigation.
There's a lot of stuff that can happen with damages between $15,000 and $1,000,000.
A: could agree to arbitration or decide to go to trial. B: signed away right to trial so can only do arbitration.
I fail to see how B provides more options for consumers than A.
The point is to commit to a path ex ante. If I know someone has a $100k claim against me, and I have more liquidity than them, I’m not going to agree to arbitration.
Tell a regular person that oh, you can sue the company in front of an arbiter of their choosing, who’s fees are paid by the company, and they will immediately walk away, because no one will believe they will get a fair hearing at what appears to be a rigged court.
There's also the ban on class actions--effectively meaning small things become legal because very few will fight when the cost of fighting is more than the expected recovery. (In some places the government is guilty of that, also--the cost to contest a ticket may be higher than the cost of the ticket and not recoverable even if you win.)
It makes you almost instantly unemployable. And even if you’re now retired, it’s almost certainly not worth the hassle it will cause.
If someone has enough of a grudge to publicly complain then the suing by the company will only add to their complaint and, if anything, might be an incentive for them to publicly complain.
[1] Specifically, when I have asked to remove it, they have done so without any back-and-forth and without asking for anything in return.
I was paid off after a senior member of staff at a company I worked at did something he should not have (not sexual). I'd rather have had the pay off. No one forced me to sign anything. And I would have been worse off getting "justice" than a cheque...
After paying you off, the senior member of staff could do exactly the same thing to your replacement who, without the context of your experience, might assume that no one knew what was happening to/around them (when everyone around them knows) and/or that there was no recourse (although the company was fearful enough of you to pay you off.)
What is greater, other people's right to know about the victim, or the victims might right to get some redress?
Sure, it may be very convenient for you if you can toss garbage out your car's window instead of having to spend time carrying it around and finding a trash can, but if everyone tossed garbage from their vehicles, society would certainly not be a better place.
Similarly, it is better if companies don't attach a price tag to such illegal (I assume?) behavior because, well, even if you individually would rather be paid off, normalizing that practice will probably be worse for society. At least that's the value call being made here.
Instead of thinking "Well, I personally would rather have this", you can instead think "Would I like to live in a society that condones and expresses these values".
I, personally, would rather frame things in terms of society, not individuals. I do not think victims have an infinite right to redress.
No, it doesn't. It just prevents a company from paying them and requiring them to sign away labor law rights as a condition of payment. And it would be in the company's best interest to do so as it changes the story from "X did this to me and Y company did nothing to take care of me" to "X did this, but the company made sure I was OK".
If a company chooses to stop doing this, it is their decision and not a result of the law.
Typically with a tech company where they are concerned about a person walking out with IP the company will instead put the employee on garden leave for the duration.
It would also be completely within the WARN act to say "you are going to be laid off on April 24th, however you are required to show up for the next 60 days and do knowledge transfer to the rest of the team." And then on April 24th, you sign that you acknowledge that you've been let go, you hand in your badge, get your final paycheck and payout of any accrued vacation and then walk out the door and that's it - no other payments.
Employers have never been required to offer severance.
For example - the document on final pay for California. https://www.dir.ca.gov/dlse/finalpay.pdf
> There is no legal requirement under California law that employers provide severance pay to an employee upon termination of employment.
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Typically, the stuff you sign when you leave is a payment contingent upon a promise not to cause future problems for the company. Don't disparage them, don't threaten to sue them for certain things relating to being discharged from the company.
If you don't sign it - you don't get the severance pay.
I am curious to see how this works, since my severance was accelerated stock vesting, and was given in return for agreeing to the non-disclosure and non-disparagement clauses. If those aren't available any more, I wonder if companies will be less inclined to offer severance since they get less in return.
Acceleration of vesting is also potentially a legal protection against litigation claiming an employee was terminated to prevent vesting. It's often easier to just let someone vest than to prove you are not trying to get out of the grant.
> There is no legal requirement under California law that employers provide severance pay to an employee upon termination of employment.
The corresponding part is that if you can't waive X, Y, and Z - will the company still offer severance pay?
But it also might send jobs overseas and to non union shops, just like Colorado and New Mexico have become havens for filming outside of Hollywood.
New Mexico: https://local480.com/
Colorado: https://iatse.net/local-union-directory/?_sfm_local_short_ju...
Nonetheless, firms move away from union labor where they can, to the point of relocating operations to do so. There is copious evidence of this.
For the large majority of HN who are not organized (or being organized) this wouldn’t impact them at all.