Beware of Certain Employment Forms

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On the heels of this last Labor Day weekend, it’s a good idea to pause and reflect on some of the changes – good and bad – that affect our workforce. Most of us who are considered professional employees aren’t exposed to physical dangers that existed many decades ago. The erosion of labor unions and the labor union movement can be attributed, in part, to managers’ belief that employees are safe and secure without the presence of a union. After all, don’t most companies provide a range of benefits, good salaries and other protections that demonstrate their fairness and concern toward their workers? The answer is both “yes” and “no.”

With the exception of a very brief time in the mid-1980s, the thought of the existence of “white collar” labor unions has been considered ridiculous within management circles. Today, though, professional workers should be concerned about and aware of the forms that they’re required to sign before they even begin to work for an organization.

Arguably, the two most restrictive employment forms are the hold harmless agreement and the agreement to (forced) arbitration. Essentially, the hold harmless arrangement stipulates that both parties – employer and employee – mutually agree that neither side will be held responsible for any harm (broadly defined) incurred during the employment relationship. The acceptance of arbitration means that an employee relinquishes their legal right to sue their employer and instead, allows an arbitrator to settle the case. Although the arbitrator should be a neutral party, more often than not, arbitrated cases favor employers.

Does the widespread use of these forms represent an equitable, inviting employment arrangement? I think not and I hope that you agree with me.

Recently, Gretchen Carlson’s sexual harassment lawsuit brought this topic into the spotlight. What’s interesting about her case is this: she was bound by Fox News’s arbitration clause but cleverly, she sued Roger Ailes personally and won the suit. Of course, many writers have argued about the legitimacy of her case and whether her settlement of $20 million was too much or too little, given Roger Ailes’s severance that more than doubled her settlement. In spite of your views, keep in mind that both of these people have high profiles, vast financial resources, and the professional contacts needed to bounce back with ease. Average people – men and women alike – simply do not have these advantages.

The following article was written before this case was settled. The last two paragraphs offer a hint about what may happen to arbitration clauses within employment agreements:

What Gretchen Carlson and Immigrant Janitors Have in Common

When I taught management courses, I always encouraged my students to learn about and stay apprised of changes in employment laws. Whether you’re an employee or an employer, periodically review the Equal Employment Opportunity Commission’s (EEOC’s) website at:

https://www.eeoc.gov/