The plight of unemployed workers is inextricably linked to the high rate of foreclosures. These are not the stories of people who bought a house on credit that they could, under no fantasy, afford. Those are the extremes, and were never destined to work out.
These are the stories of ordinary people squeezed by daily expenses, but making it until they were brought down by a prolonged period of unemployment. They lose their houses, their credit is smashed, and when they finally get a new job, they remain insecure. A recent New York Times article details only three such examples, but they are surely worth pondering as we see whether the American mindset will permanently change. Our grandparents (or parents or great-grandparents) who lived through the Great Depression were more likely to believe in saving to the point of miserliness, buying nothing on credit, and putting by for retirement. Yet, as the thirties turned into the forties and fifties, the post-war economy soared, social security was available, good private pensions abounded, and people took more risks. Easier, perhaps, when a lifetime at one company was commonplace.
Now many well-educated, well-trained, hard-working people have lived the reality of employment at will. They may not be able to afford a house again, or be able to handle the commitment required. They know that loyalty to an employer is a one-way relationship. Will their experiences change our priorities and choices, or will our native optimism prevent us from redefining the American dream?
The typical modern worker uses email and the internet for lots of work and personal reasons. Sometimes the purposes of those uses blur; certainly the time spent on the internet is often a mixture of personal and professional. It seems almost effortless to multi-task, and we can handle a query for work together with a quick look at the deal of the day on Amazon.com.
The Problem for the Corporation.
But the typical modern corporation grows ever more concerned about its exposure by computer use, and for good reason. Sexual harassment can arise easily with the help of technology. Consider these examples, all from recent cases of mine: a man watches internet pornography on a computer in a cubicle (sound travels); emails with links to risque videos are misaddressed to someone who finds them offensive; email jokes with offensive racial or sexual content make the rounds through a company through that easy “forward to” function. As soon as the company finds out, it needs to act. An effective way to deal with sexual harassment claims can be to fire the harasser. If the entire place is infected, though, the company may instead put strict limitations on the use of its equipment.
The Extent of Corporate Surveillance.
As a result of the dangers of computer misuse, coupled with the incredible array of time wasters available on the internet, some companies have instituted a zero tolerance ban on personal use of the company computer system. Others are more realistic, recognizing that employees who work more than eight hours per day may need to engage in internet shopping, check with the children, or just relax for a few minutes. According to a study by the American Management Association published in 2008, more than half of the employers surveyed monitored and reviewed website connections, almost two-thirds blocked access to certain websites, and a quarter monitored the time spent and the phone numbers called on company phones. A quarter of employers also used video surveillance to counter theft, violence or sabotage.
Even if you are working harmoniously with your employer, the lack of privacy has other impact. Some employers use keystroke loggers, which can measure productive work, but also record passwords, emails, and the like. Even when the level of intrusion is lower, an employee needs to remember that an IT department employee can often read electronic traffic through the company’s system, even when the employee is utilizing his own, non-corporate email account. That is, an employee who logs onto his yahoo email account may inadvertently leave tracks that allows the employer to read the message sent, if not messages received. You have to remember that the corporation is made up of individuals, and they may not all be nice people. If it’s easy to intercept your facebook password, someone may use it to mischief or worse. Your password to your on-line banking account may be revealed to the IT department if you pay your bills online.
Why Employees Need to Monitor their Own Behavior.
A significant percentage of employers who engage in recording their employees’ computer use, phone calls, or movements do not tell employees that they are doing it. Others mention it in the policy handbook, but not otherwise. Under the Maryland Wiretap law, recording workplace phone conversations without consent is legal if the recording apparatus is part of the company’s telephone equipment and there is a business reason for recording conversations, such as evaluating employees’ interactions with customers. This same law probably makes video and audio surveillance illegal, but not video-only surveillance.
Regardless of the degree of corporate tolerance, the employee should keep vigilant in using the employer’s system, remembering that he is a guest in the employer’s house. You may feel at home in your office, but it is a mistake to assume that interaction done quietly on a company’s system will necessarily remain private. Some of my clients, for example, have made the mistake of sending emails to me from their company email account. Notifying a lawyer that you are unhappy about your work treatment is especially problematic. You may forfeit the attorney-client privilege and reveal your private communications to the very company you mean to pursue.
To protect yourself:
- use your own cell phone;
- if the blackberry belongs to the corporation, assume it can read what you put on it;
- assume your email is being monitored — engage in personal email from home;
- don’t search for adult, pornographic, or sports sites at work;
- don’t use your company computer to do your banking or other financial transactions;
- ask if you are being recorded or monitored;
- if you blog or comment about your employer, do not assume that your comments will necessarily stay anonymous (more about this later).
According to an article in today’s New York Times, the difficulty of bouncing back from a layoff turns out to be permanent for many workers. The article quotes an economist whose longitudinal study of workers laid off in an earlier recession, in and around 1982, proves statistically what many feel: in many cases, the middle-aged, middle income worker loses a job, and never regains his original wage level. The study concludes that people who stayed in one job the longest were hardest hit, perhaps because they had become such specialists. Not only that, those who had been laid off once were more likely to face the same fate in the next economic downturn, since their tenure was shorter.
I do not have the economic chops nor remember enough about statistics to evaluate the methodology, though it certainly seems to have been thoroughly considered. The authors primarily focus on men’s experiences, but decide that women’s experiences track the same way.
The authors of this study do not take on the challenge of suggestions for an individual to escape the 20% long-term earnings reduction that befell the average laid off worker. From a societal perspective, however, they note the following:
In particular, while the ability to fire ‘at will’ may benefit adjustment in
the labor market as a whole, the costs in terms of lost productivity and earnings of individual
workers may be much higher than typical replacement rates of unemployment insurance or
other programs designed to smooth temporary earnings fluctuations.
(See page 20 of the study).
I haven’t been hearing a groundswell of support for enacting a termination with cause standard, and don’t expect it to begin in Maryland. So, in the meantime, employees need to keep in mind that loyalty to an employer is largely a one-way street. Recommendations on avoiding a permanent reduction in a standard of living after a layoff include things that your mother told you, and things your geeky nephew can tell you. Mom would say live below your means, you never know how long the good times will last. And Stan the high- tech man can teach you to leverage social networking like LinkedIn (here is my profile) and other sites, and to keep track electronically of your friends and acquaintances, so you can get a great job search going when you need to.
Have you been offered a severance agreement? Well, congratulations for getting something out of a bad situation, and condolences on the bad situation. What does it all mean?
Severance is offered by some companies as a matter of policy; in many of those cases the severance policy is made according to a written plan with specific rules. That means that the severance plan requires that you be paid based on some formula spelled out in the plan, perhaps a week for every year of service plus accrued but unused vacation. Most of the plans I’ve seen also say the severance will be paid only if you sign an agreement in which you release all claims, agree to keep the agreement’s contents confidential, and agree not to bad-mouth the company.
These kinds of agreements are almost always a condition of the severance offered on an ad hoc basis to someone whose employment has been terminated. Other frequently seen provisions include renewals of the non-disclosure agreements, provision of career placement services, and the ending of all fringe benefits, except, sometimes, health insurance.
To obtain an effective release from some claims of discrimination, the severance agreement must have certain provisions. For example, to release age discrimination claims, an employee must be given a certain time period to consider the agreement, plus a seven-day period to revoke his or her agreement, under the Older Workers Benefits Protection Act.
To release Family and Medical Leave Act claims, the Department of Labor needs to be involved.
The EEOC offers a severance agreement primer at its website, you can find it here.
What’s your next step?
If you are presented with a severance agreement, you need to determine whether the value of what the company is offering is more than the value of your released claims. In addition, if the agreement is not being offered as a part of an employment benefit plan, then there may be room to negotiate a better package, whether “better” means a higher financial payout, or an offer of something less tangible, such as a positive recommendation. Experienced counsel may be of help in figuring out your options.