[HN Gopher] NLRB judge declares non-compete clause is an unfair ...
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NLRB judge declares non-compete clause is an unfair labor practice
Author : lalaland1125
Score : 343 points
Date : 2024-06-16 13:40 UTC (9 hours ago)
(HTM) web link (www.nlrbedge.com)
(TXT) w3m dump (www.nlrbedge.com)
| BeefySwain wrote:
| > Salting is protected activity, lying about your employment
| history to salt is also protected activity, and firing someone
| for salting is an unfair labor practice.
|
| Huh... TIL
| InvaderFizz wrote:
| That stuck out at me too.
|
| So, all you have to do to completely lie on your resume and
| keep employed, is pretend to be union organizing?
| ralferoo wrote:
| I'd imagine it'd go to court and the union would have to
| testify that this is the case, and also have documentary
| evidence to back it up.
| p_l wrote:
| Inventing qualifications is probably still not legal.
|
| Now, not mentioning a job in the past, or some details of it,
| are a different case.
| tzs wrote:
| No.
|
| You can lie about union organizing because an employer is
| _not_ allowed to use whether or not you are a union organizer
| when making hiring or firing decisions.
|
| If you lie about something that the employer _is_ allowed to
| use in making those decisions they can fire you.
| Volundr wrote:
| > So, all you have to do to completely lie on your resume and
| keep employed, is pretend to be union organizing?
|
| You can lie about your union involvement. You can't make up
| qualifications you don't have.
| kingkawn wrote:
| As it should be
| jpambrun wrote:
| Care to elaborate? I can't think of any argument for this
| position.
| charlesabarnes wrote:
| Organizing a union once in your employment history would
| bar you from employment at a ton of companies otherwise
| jpambrun wrote:
| What is this about then. Obviously you can omit stuff on
| your resume. I take offense at adding fake experiences.
| vintermann wrote:
| It can maybe be tough to explain what you were doing in
| those years you were actually working at a well-known
| heavily unionized business.
|
| It sucks if you have to be allowed to just make up work
| experience, but the root of the problem is the power
| imbalance between employers and employees, and well,
| that's what's unions are trying to address.
| stavros wrote:
| This isn't about adding fake experiences, though, no?
| It's about omitting experience you've had.
| SpicyLemonZest wrote:
| Depends on what you consider a "fake experience". The guy
| in this case legitimately had 4 years of HVAC experience,
| but he falsely claimed it was at one particular (non-
| unionized) company when it was actually at two different
| (unionized) companies.
| stavros wrote:
| Ah, I see. In my opinion, this is OK, as otherwise a
| 4-year gap in a resume might telegraph a union
| affiliation and make people unhirable. The spirit of the
| law is that you're allowed to lie to hide union
| affiliation, so that's fine.
|
| I would be against people making up experience, but
| replacing one company's name for another might be OK, if
| the companies are of roughly similar caliber (no saying
| you worked at Google when you were an IT for a shop).
| ungreased0675 wrote:
| Are there any other employers it's legal to lie about? I
| don't like the idea, even though I understand the goal.
| kingkawn wrote:
| Unions should be an inherent presence at every job. Any
| laws that help further their establishment so that business
| people who sell the labor of a single individual are able
| to organize beneficial business associations amongst
| themselves is a positive for the American workforce and the
| country.
| CoastalCoder wrote:
| I'm curious what the logic is to justify lying about employment
| history in order to salt a union.
|
| My understanding was that you couldn't be penalized for
| organizing a union _per se_ , but that didn't mean you couldn't
| be fired for other non-unionization-related reasons.
|
| It seems like this is going a step further: things that could
| get someone fired in completely union-unrelated situations, are
| actually protected if done in service of unionization?
|
| If so, where's the line? Can an organizer simply not show up
| for work and still collect a paycheck? Can they harangue the
| business' customers because their job requires access to the
| company's customer list?
| alpinisme wrote:
| Consider the alternative where employers can fire you for
| lying about your employment history. Once you've done some
| union organizing, you'd be potentially unhireable.
|
| ETA: Here's the relevant part of the judicial decision in
| this case:
|
| > None of these employees [who were fired for lying and used
| to claim precedent in this case] are an appropriate
| comparator for McClure, who was never accused of stealing,
| violating traffic laws, or other criminal conduct. And, even
| if Respondent could show that the other employees were fired
| just for lying, and not for the underlying serious
| misconduct, Respondent could not use that to justify firing
| McClure because they were all accused of lying about conduct
| that Respondent could lawfully consider in hiring or firing
| them. In contrast, McClure lied about his history of working
| for union employers. Because Respondent could not refuse to
| hire McClure because of his union background, his lie about
| working for Deem can't be used to justify firing him.
| Xylakant wrote:
| In Germany, there are certain kinds of questions that are not
| permissible on an employment questionnaire, for example
| asking whether a candidate is pregnant or plans on having
| children, union affiliation, etc. However, these questions
| are often included in the questionnaire and not answering
| them would provide sufficient signal to the employer and the
| only remedy would be to sue the employer. So it's explictly
| permitted to lie in the answer, rendering the questions
| useless.
|
| I expect a similar line of reasoning applying to this case:
| The question is about a protected, legal activity which is
| nonetheless undesirable for certain employers. Asking the
| question and requiring a truthful answer would undermine the
| protected, legal activity. Hence an effective remedy is
| explicitly allowing to lie in the response.
| thegrim33 wrote:
| > "there are certain kinds of questions that are not
| permissible on an employment questionnaire" .. "these
| questions are often included in the questionnaire".
|
| I don't follow. It's not permissible but these companies
| just blatantly ignore the law and ask it anyways? Or it is
| permissible?
| abhorrence wrote:
| Presumably they ignore the law.
| Xylakant wrote:
| Those companies ignore the law - knowing that a candidate
| could sue, but then they would remove the canditate from
| the pool for any unrelated reason. A union could sue on
| behalf of a candidate, but until the case is resolved,
| the questionnaire still stands. Allowing candidates to
| just fill in the expected answer, truthful or not, is an
| effective remedy - it renders the question useless as a
| signal for the employer.
| AdrianB1 wrote:
| In most of Europe there is no notion of punitive damages
| in a law suit. That means if you sue that company they
| will fix the questionnaire with no other consequences. 3
| months later they can put it back, also without
| consequences. Suing them can be costly, so most people
| will not bother. There is zero reward for doing it, as a
| candidate you waste time and money with no net return.
| All negatives and no positives.
|
| So with very little risk, they do it.
| louiskottmann wrote:
| It's not allowed, but you'd have to sue if you uncover
| one such questionnaire, which is a hassle.
|
| So instead, lying on your answer is not sue-able. Which
| makes including such questions ineffective.
| lazide wrote:
| It renders the questions useless against experienced
| candidates, but not against naive or ignorant ones. So it
| still has value to employers.
|
| The best remedy to stop such things is a statutory 'bounty'
| for such activity - like the $2500 penalty for California
| employers for attempting to scare employees with
| unenforceable non-competes.
| dcre wrote:
| Here's a case where calling the boss names is protected
| converted activity.
|
| https://www.nlrbedge.com/p/wall-street-journal-is-mad-at-
| wel...
| cess11 wrote:
| "In 1979, the NLRB issued its Atlantic Steel decision,
| which established the test for determining when an
| employee's otherwise protected speech towards management
| becomes too extreme to remain protected. This standard
| considered:
|
| (1) the place of the discussion
|
| (2) the subject matter of the discussion
|
| (3) the nature of the employee's outburst
|
| (4) whether the outburst was, in any way, provoked by an
| employer's unfair labor practice."
|
| You should probably have added this for nuance, so people
| don't misunderstand you and get the idea that name calling
| per se is protected.
| ethbr1 wrote:
| "You fucking asshole... for prohibiting discussions of
| union organizing."
| ralferoo wrote:
| > I'm curious what the logic is to justify lying about
| employment history in order to salt a union.
|
| Being from outside the US, I'd never heard this term before,
| and actually in my country it's rare that you join a company
| and aren't given all the documentation by HR about what
| unions you can join on the first day.
|
| But anyway, when I googled this term, from the wikipedia
| article:
|
| > The tactic is often discussed in the United States because
| under US law unions may be prohibited from talking with
| workers in the workplace and salting is one of the few legal
| strategies that allow union organizers to talk with workers.
|
| It'd seem them that at least one reason why they might
| explicitly protect the right for union members to lie about
| their employment history when trying to join a company for
| the explicit reason of salting is that they would also be /
| have been an employee of a union, and disclosing that could
| well get them deselected from consideration for the role.
|
| Presumably the company will still be responsible for their
| own due diligence in checking that the potential hire had all
| the necessary qualifications to legally carry out the work,
| and might well discover the lie in that process. Presumably
| they could then also terminate the employee for that reason
| at that point because they couldn't actually legally carry
| out the job duties, but equally I'd imagine if they uncovered
| a lie which could be shown (presumably in court) to be for
| the purpose of salting, but they were otherwise legally able
| to perform the work, then the company couldn't fire them.
| 6510 wrote:
| > in my country it's rare that you join a company and
| aren't given all the documentation by HR about what unions
| you can join on the first day.
|
| We have companies actively looking for an employee to
| represent the union. Few want the responsibilities. (hours
| are paid, activities take priority in the schedule) I
| imagine they most often end up with someone who cares about
| the company.
| ethbr1 wrote:
| The US tries to thread the needle between being "pro
| management" and "pro labor".
|
| Historically, the bargain that has been struck is that
| _current employees_ have substantial protections around
| union organizing.
|
| However, _outside unions_ have limited rights to directly
| solicit employees.
|
| That's at the federal level. At the state level, additional
| pro-union rights may layer on top of that (e.g. in the
| northeast) or not (e.g. in the southeast).
|
| Additionally, since you mentioned Germany, most US workers
| do not have a seat at the management table, in contrast to
| how I believe German companies are typically organized?
| jprete wrote:
| IANAL, but as far as I know, the line is "intent", and courts
| of law are empowered to infer intent from actions.
|
| > things that could get someone fired in completely union-
| unrelated situations, are actually protected if done in
| service of unionization?
|
| If you preferentially fire union organizers and
| preferentially ignore the infractions of non-union-members,
| then yes.
| scrapcode wrote:
| That seems absolutely ridiculous to me... what am I missing? I
| can lie about my work experience in order to infiltrate a
| business and form a union?
| Drakim wrote:
| Maybe it's specifically in the context of unions and nothing
| else?
|
| If you lie about your work experience, it turns out you can't
| program Rust, then you can get fired for that.
|
| But if you lie about never having been part of a union
| before, and it turns out you have been part of a union
| before, then you can't get fired for that.
| dartos wrote:
| Well, if you're hired as a rust engineer and you don't know
| rust, you'd be fired for not being able to fulfill your job
| duties.
|
| If you get fired for being part of a union, then you're
| being fired for your political position.
|
| It's not your fault for lying on the resume, it's the
| hiring teams fault for not catching it
| seneca wrote:
| > It's not your fault for lying on the resume, it's the
| hiring teams fault for not catching it
|
| Anyone who ever complains about how ridiculous hiring
| interviews in software development have gotten should be
| referred to this comment. This is exactly why these
| absurd practices exist. Because people think they're
| entitled to lie, and it's your fault if you don't catch
| them.
| oooyay wrote:
| I've interviewed a lot of people over my career. I'm not
| sure "entitlement" is why the people who lie do so.
|
| Most of what I see people lie about isn't the companies
| they've worked at, it's the kind of work they do. For
| instance, when I was looking for a senior engineer I'd
| get people who said they did all this product
| architecture work, leading teams in the weeds of building
| products internal and external. A lot of those people
| turned out to be actually working on projects by
| themselves or they didn't actually do any technical work.
| The latter is pretty easy to identify because if you
| start asking them nitty gritty standards questions about
| what they built they'll be completely lost. One woman
| that stood out like this was part of a _ton_ of
| professional organizations, and was even being granted
| some really big title in one of them so I was pretty
| bullish that I 'd found my senior. The last major project
| she led a team on was an internal REST service, so I
| figured it'd appropriate for us to workshop a REST API
| design. Pretty easy stuff to iteratively improve through
| a conversation especially if you've done it a thousand
| times. She didn't understand the grammar of REST much
| less how APIs are grouped. By that point I was starting
| to realize her role was likely more administrative than
| technical as a lot of roles at her level at non-tech
| businesses become. Discovering engineers who say they've
| led teams who haven't is also pretty easy. Frankly, not
| many engineers have actually led teams - it's an actual
| rarity. Of all the things engineers are asked to do day
| to day, leading other engineers is generally not party to
| them. I'd generally ask something about how they
| implement "trust but verify" aka delegating work.
| Engineers who have worked primarily solo will not know
| how to break down work so that others can consume it and
| align to the actual idea. It's something that takes a lot
| of practice and the answer generally involves a pretext
| of what certain people's strengths and weaknesses were.
|
| I have no doubt both of these folks genuinely wanted to
| do what they were applying for. I don't think they'd ever
| really been given the chance, or worked at the wrong kind
| of companies for what they wanted to do.
|
| To call it the "fault of the team" is easy, but in
| reality we have a very disjointed industry with no
| standard practice for building software, much less as a
| group.
| dartos wrote:
| It's not just software. It's all industries.
|
| People are paid to find matching talent. Talent isn't
| paid to be truthful on resumes.
| dartos wrote:
| Well... everyone is entitled to lie, including employers.
|
| That's the crux of the issue.
|
| Software has wild practices because there's no agreed
| upon certification and there's this myth of 10x
| developers and managers only want those mythical 10x-ers
| gwd wrote:
| You're using the word "entitled" in a very strange way.
|
| Entitled isn't a statement of practicalities or
| realpolitik; it's a statement of ideals. "Entitlement" as
| a concept doesn't make sense outside of the context of
| morality and ethics (or laws). It's not about the way the
| world _is_ , but about the way the world _ought_ to be.
|
| If I'm an employer trying to spend the limited resources
| I have to get the right people on my team, barring
| exceptions I'll get into below, I have a right to be told
| the truth. You don't have to tell me everything, and if I
| ask a question you're entitled to say "None of your
| business". But if I say, "What experience do you have
| leading a team" and you lie to inflate your experience,
| and based upon that I hire you, then you have harmed me,
| you have harmed your future colleagues, you have harmed
| the other person I might have hired if you'd told the
| truth, and you have harmed yourself by putting yourself
| in a situation where you can't perform and can't trust or
| be trusted. A symmetric set of harms can be sketched out
| for employers. So no, you absolutely are not entitled to
| lie to me as a potential employer, and neither are
| companies entitled to lie to you as a potential employee.
|
| The one exception I'd carve out is if you had the
| expectation that I'd _misuse_ the truth. If I ask, "Are
| you pregnant", or "Have you ever been a union organizer",
| then "yes" could be misused to refuse to hire me (which
| is against the law), and "none of your business" might be
| construed as "yes". (Similarly to why, in WWII, I'd
| answer "No" if Nazis came to me door and asked me I were
| hiding Jews.)
|
| But if I'm hiring you to lead a team, what I would do
| with an honest answer to "What is your experience leading
| a team" is legitimate, not misuse; and you have neither a
| moral, ethical, nor legal right to lie to me in your
| response.
|
| Perhaps you really meant that practically speaking, below
| a certain level, there's no way to police minor
| "misrepresentations" from one side to the other. But just
| because it's possible to do it and get away with it
| doesn't make it right; and the fact that lots of people
| are causing harm to others by misrepresenting themselves
| doesn't negate the harm that you're causing when you do
| it too.
| scrapcode wrote:
| Okay - that makes a bit more sense, not having to list your
| involvement with a union.
| andylynch wrote:
| According to the ruling, yes, given the public interest as
| stated, in protecting the right to organise.
|
| This is broadly similar in principle to laws like those in
| many places allowing one to not disclose spent criminal
| convictions.
| spamizbad wrote:
| The context here is salting so it would likely be omitting
| prior employment or education/training. I personally think
| this is completely reasonable in all cases.
|
| Non-salting example: over a decade ago I omitted an entire
| year of professional experience as a PHP developer when
| trying to get hired as a Python engineer, because I didn't
| want to get pigeon-holed as "PHP dev who can maintain our
| crummy legacy PHP codebase nobody wants to touch".
|
| Anyway it would be extremely problematic if employers were
| entitled to full and complete honesty from applicants but had
| no equivalent obligations from their side. If businesses had
| the choice they'd pick the status quo over mutual
| transparency.
| eterevsky wrote:
| I don't think omitting some of your old positions that you
| think are irrelevant amount to lying.
| cempaka wrote:
| The parent didn't think they were irrelevant at all, they
| thought it might signal to the company that it could
| extract more value by assigning them work they didn't
| want to do.
| spamizbad wrote:
| I lied about my potential value (by understating it) to
| an employer for (longer term) personal and professional
| gain.
|
| Going back to Union Salting:
|
| Often times the "salt" is a star employee; they're always
| on time, never say no to a job, pick up shifts nobody
| wants to take to ingratiate themselves both to management
| and their colleagues. They don't ask for raises and never
| complain to management. Their intention is to organize
| workers and so they want to be the sort of model employee
| a manager will keep around.
|
| The reason why this practice is allowed is because its
| illegal for unions to walk into an establishment and talk
| directly with employees about organizing while they're
| "on the clock" and on premise.
| datavirtue wrote:
| Well intentioned hiring managers and teams lie all the
| time. If they let the truth flow they wouldn't be able to
| do their jobs. These people don't even mean to lie.
| nohuck13 wrote:
| If lying about you employment history is a protected activity,
| then if a pre-employment background check catches you lying
| about your employment history, and you say "no I am salting,"
| that also is protection from having your offer rescinded?
| cess11 wrote:
| In court it would be tested whether your deceit is actually
| relevant to the salting. Faking an entire resume to get into
| a place where you can't do the work isn't likely to fly,
| hiding your time working for a union by claiming you did
| first line customer support might.
| ketzu wrote:
| I assume quite a few people think of one way of "lying" about
| employment history, that they have very strong feelings about
| how it should be handled.
|
| Like
|
| * Omitting (or denying) that you have done a certain activity
| (eg., union founding, working with PHP, that only-2-month job
| because it sucked).
|
| * Claiming (or adding) jobs or degrees that you have not worked
| at or earned, on your CV (e.g., claiming to have worked for
| microsoft for 4 years when you didn't).
|
| To me the first one seems clearly okay, but the second one not
| so much.
| n2d4 wrote:
| Personally, I think "denying" is also bad, while "omitting"
| is fine.
|
| Instead, I think it's more reasonable to have exceptions for
| certain protected activities, such as salting. It's in the
| same category as sexual orientation for me; employers should
| not be allowed to ask or make decisions based on it, so if
| you're asked as an employee, you shouldn't have any
| obligation to tell the truth.
| SoftTalker wrote:
| I agree omitting is usually OK especially if it's not
| relevant.
|
| Omitting entire jobs if the experience isn't particularly
| relevant (particularly if it was a long time ago) can be
| OK. I omit that I worked at McDonald's when I was 17 in the
| 1990s when I am applying for a job in 2024. But if there
| are gaps in employment history you might be asked about it,
| especially if it's recent.
|
| Something like fudging employment dates along with omitting
| some jobs to disguise that you are a job-hopper gets into a
| much more grey area.
|
| I was surprised to learn that lying about employment
| history to hide that you are a salter was protected. I get
| that salting might be protected, but did not expect that
| lying on an application would be.
| cool_dude85 wrote:
| >I was surprised to learn that lying about employment
| history to hide that you are a salter was protected. I
| get that salting might be protected, but did not expect
| that lying on an application would be.
|
| Making it so the employer can fire you for lying about
| the application would practically remove protection for
| salting. Nobody would hire you for a non-union job if
| they see you being employed by a union as an organizer in
| your last job.
| datavirtue wrote:
| How dare you accuse me of working with PHP!
| Quanttek wrote:
| The idea is pretty easy: If an employer could simply ask you
| about past union activity (or activity indicating it, such as
| certain training) and then fire you for lying about your
| employment history when you omit it, then the protection for
| unions is effectively neutralized.
|
| Unlike what other commentators imply, this judgment doesn't
| legitimize just inventing degrees or qualifications. It's
| closer to omitting that 2-month job that didn't work out
| ndriscoll wrote:
| > McClure applied as a covert organizer, or salt. He gave
| Respondent a resume that falsely claimed that he worked at a
| non-union company called Deem from 2018 to the time of his
| application... McClure testified that he believed claiming to
| work for a non-union employer would increase his chances of
| being hired, as people in the HVAC industry would generally
| recognize WMI and Habel as union shops and Deem as non-union.
| AndrewKemendo wrote:
| We have had decades of worker suppression that lead people to
| think that it's illegal to collectivize against your employer
| and it's just not the case
| hn_throwaway_99 wrote:
| I don't think that's what people were surprised about. Just
| speaking for myself, I was originally surprised by the
| statement "lying about your employment history to salt is
| also protected activity". After all, it's seems to make
| perfect sense that I can be fired for lying on my resume.
|
| The bit that I didn't understand, and that some of the
| comments here cleared up, is that only lying about the
| employment pieces that specifically relate to past work as a
| union organizer are the things that are protected activity.
| Izkata wrote:
| Yes, salting in general is adding something. Sounds like
| inventing a job you didn't actually do is protected?
| Doesn't make sense.
|
| Missed that this is a jargon word that has a special
| unrelated meaning here.
| jmyeet wrote:
| Here's an exercise for you.
|
| Take almost any court case that makes it to the Supreme Court
| or Federal government action, regardless of the court's makeup,
| or what party controls the White house or Congress, and ask
| yourself this question:
|
| What is the pro-business or pro-government outcome of this case
| or legislation?
|
| Then see how the court ruled or the executive and legislature
| acted. You will find the majority of the time that the pro-
| business or pro-government (particularly pro-police) outcome
| matches what actually happens.
| singron wrote:
| This is not a valid interpretation of this case. The judge
| concluded that the employer fired the employee in retaliation
| for union activity. The company claimed they fired him for
| lying on his resume, but they couldn't prove that was the
| reason (which is their burden to prove), and it wasn't
| consistent with prior company behavior. E.g. they had a
| recorded conversation about how they could figure out a way to
| not hire a union applicant, and they had never fired anyone for
| a similar infraction before.
|
| Importantly, the only detail on the resume that was false was
| the name of the prior employer. They had accrued the same
| experience at a union employer instead. This case doesn't allow
| you to arbitrarily lie on your resume in order to salt, and you
| can still fire someone for lying if you can reasonably prove
| that.
| dataflow wrote:
| How much authority/jurisdiction does this judge/ruling have? It
| seems like the kind of thing that might easily get appealed and
| lost.
| bitwize wrote:
| The conservative SCOTUS has a vendetta against the
| administrative state. The overturn of the bump stock ban is
| just the beginning: they're going after Chevron deference.
| This, combined with conservative justices tending to favor
| contract law over consumer/employee protection, means that any
| federal ban on noncompetes is likely to be overturned absent a
| statute from Congress.
| lolinder wrote:
| > the administrative state. The overturn of the bump stock
| ban is just the beginning
|
| It's not even sort of the beginning. The conservative stance
| on the role of the Supreme Court has been pretty clear for a
| long time and this court has been ruling that way for a few
| years now.
|
| Their theory is that Congress makes the laws, the Executive
| branch enforces them, and the Judicial branch interprets. The
| precedent that they've overturned has consistently been in
| line with this logic: they've said over and over again that
| if America wants a law then Congress should create it, rather
| than relying on executive rulemaking that gets overturned
| every time an administration changes or on unelected judges
| legislating from the bench.
|
| Whether or not you agree with them on specific issues, I
| think we can all agree that the current status quo where
| worker rights take dramatic swings every time a new party
| takes control of the presidency is a ridiculous situation
| that needs to be fixed. I want a nation of laws, not a nation
| of administrative rules that have a 4-year shelf life.
| kbolino wrote:
| I do wonder if this strategy will actually move the needle
| at all. Conservatives have tried something like this at
| least twice before: lower taxes to starve the government of
| revenue and force cuts (largely failed and just got routed
| around with massive deficit spending) and interpreting the
| Anti-Deficiency Act in such a way that the government
| "shuts down" if Congress hasn't explicitly funded it,
| presumably in the hopes that Congress would responsibly
| pass a budget well before the deadline (obviously also a
| failure in general, since Congress waits till the last
| minute regularly now and shut downs happen about once or
| twice a Presidential administration).
|
| Edit: Make that at least three times: they've also capped
| the civil service which has just caused an explosion in
| contractors.
| lolinder wrote:
| Yeah, I don't know. Congress is so completely and utterly
| broken that I'm unsure it can be fixed.
|
| Legislating from the bench is better than the
| administrative rulemaking in that it's at least generally
| more stable, but I do think that the conservative
| justices have a point that the actual laws should be more
| directly accountable to the people than the Supreme Court
| is.
|
| Basically, we should be able to change the laws, but it
| shouldn't be as simple as winning a single national
| election because that makes things too unstable.
| kbolino wrote:
| The only system that aligns more with voters that I'm
| aware of is the Westminster system but it has is faults
| too. It is after all the same system that gave us "Yes,
| Minister" which illustrated and lampooned the fact that
| the civil service and elected politicians are distinct
| factions each with their own agendas rarely in alignment
| with each other (never mind the factions within each
| faction).
| umanwizard wrote:
| The problem with the U.S. system is twofold: first, an
| unusually high amount of cooperation is required to pass
| any law (majority of the House, 60% of the Senate, and
| the presidency). Second, the first-past-the-post
| electoral system naturally leads to a two-party duopoly
| and polarization that makes cooperation very difficult.
| No other democracy in the world has both of these flaws
| although some have one of them (e.g. the UK).
|
| The best systems in practice seem to be proportional-
| representation parliamentary ones. They generally result
| in coalitions of multiple generally centrist parties so
| things don't change too abruptly, but passing new laws is
| at least possible. Of course some parties refuse to
| cooperate with each other: in Germany for example no
| mainstream party will work with the right-wing AFD, and
| right-leaning mainstream parties additionally refuse to
| work with the left-wing Die Linke (legal successor to the
| East German ruling party although substantially more
| moderate nowadays). However this doesn't stop the big
| mainstream parties from working together to an extent
| that would be unimaginable in the U.S.
|
| It's indeed probably impossible to fix in the U.S.
| because it's so hard to amend the constitution in such a
| radical way.
| czl wrote:
| > The best systems in practice seem to be proportional-
| representation parliamentary ones. They generally result
| in coalitions of multiple generally centrist parties so
| things don't change too abruptly, but passing new laws is
| at least possible.
|
| When there are two major parties each representing say
| ~45% of the population, proportional-representation gives
| the left over swing voters equal power does it not? So
| perhaps ~6% of swing voters can have as much influence as
| ~45% of voters? Does this not happen in practice?
| Consider Israeli proportional-representation system for
| example. The Israeli % numbers are different but I have
| the impression they struggle with this problem due to
| proportional-representation.
| umanwizard wrote:
| It's less likely for two stable parties to make up 90% of
| the electorate in such a system, because splitting
| parties is much easier. If the US had proportional
| representation, there's no way Nikki Haley and Marjorie
| Taylor Greene would be in the same party, nor Bernie
| Sanders and Kamala Harris. But this split will never
| happen in the current system because leaving one of the
| two major parties would be electoral suicide.
|
| There are ten factions represented in the Knesset
| (Israeli parliament) and the biggest one (Likud,
| Netanyahu's party) got 23% of the vote in the last
| election.
|
| It's true that fringe parties can have outsized influence
| in a proportional system, but the US system suffers from
| the opposite problem: fringe elements can take over one
| of the major parties, which seems to be well on its way
| to happening with the Republicans now.
| ryandrake wrote:
| This is great in theory, and I agree with it in theory, but
| Congress has been dysfunctional for my entire adult life.
| With a few notable exceptions, Federal law is largely stuck
| at about 1993. Nobody's proposed a way to end the gridlock.
| kbolino wrote:
| I don't think your starting year is a coincidence: before
| then, Congress was nearly always held by one party: the
| Democrats. Though the Republicans were competitive for
| the Presidency, they rarely won majorities in Congress
| and could not hold them for long from FDR until Clinton.
| lolinder wrote:
| Yeah, I'm aware of that. I think the theory behind the
| Supreme Court's actions is that by undoing the patches
| that we've placed over our incompetent legislative branch
| they'll force actual change by making life uncomfortable
| enough for people to get their act together.
|
| To some extent this already has happened, just at the
| State level, and I think a patchwork of stable state laws
| is still better than a bunch of very short-lived rules at
| the federal level.
| doctorpangloss wrote:
| Okay, but the Supreme Court justices who want to take down
| Chevron are insincere.
|
| The IRS exemptions for fake Christian seemingly
| organizations: do you think the court is going to defer to
| the IRS's interpretation of the 3 word "exclusively for
| religious" part of the 501(c)(3) if it denies something
| Christian tax exemption? No. They're going to see if that
| woman's husband is a member of the Federalist Society, and
| if he is, then her bullshit charity that pays her salary
| will maintain tax exemption. My dude, Clarence Thomas's
| wife is a beneficiary of deference on 501(c)(3).
|
| They like administrative deference when it suits them.
| Don't try to make this about some sincere judicial opinion
| that has some legitimacy.
| lolinder wrote:
| > the Supreme Court justices who want to take down
| Chevron are insincere.
|
| Everyone says this about their opposition. Obviously you
| know that it's not true about the liberals--you know that
| they mean what they say. So when a conservative says that
| liberals are insincere and really have a hidden agenda
| you know that's nonsense.
|
| Turns out that that the same thing is also true on the
| conservative side. They generally really do believe what
| they say. Donald Trump is a notable exception, but even
| many of his supporters are sincere and are either
| stupidly taken in or see him as a means to a good end.
| granzymes wrote:
| This is a ruling from an Administrative Law Judge, which
| basically functions as a strong recommendation for how the
| National Labor Relations Board should decide a particular case.
| ALJs are Article II "in house" judges that specialize in the
| law of one particular administrative agency. They don't have
| Constitutional life tenure protections and mostly do claims
| processing work for the Social Security Administration.
|
| The next step in this case is for a 3-member panel of the NLRB
| (a 5 member board appointed by the President, currently with 4
| members) to decide whether to accept the proposed ruling of the
| ALJ or to substitute their own opinion of how the case should
| come out.
|
| Orders of the NLRB are not self-executing, so parties can
| appeal an adverse judgement to the Circuit of Appeals of their
| choice and the NLRB can cross-petition for enforcement of their
| decision. The Federal courts have final say over questions of
| law like "are non competes a violation of labor law".
|
| The entire process takes several years to play out.
| dataflow wrote:
| That's exactly what I was wondering, thank you!
| baryphonic wrote:
| Not to be too pedantic, but ALJs are technically Article I
| judges (or more precisely judges over Article I tribunals).
| The Constitution lists two different sources of judicial
| power, the first in Article I section 8 and the second in
| Article III. Article III courts have judges with life tenure,
| protection of salaries and are subject to review only by
| other Article III appeals courts including the Supreme Court.
| Article I courts have judges with fixed terms of office, and
| Congress can cut their salaries. All Article I courts are
| subject to review by Article III courts.
|
| There's an open controversy about how much deference the
| Article I courts in administrative agencies are owed by
| Article III courts, arising mostly from Chevron v NRDC. That
| decision requires Article III courts to defer to Article I
| courts' interpretations of their statutes and even their
| administrative rules except in extreme circumstances. Several
| justices on the Supreme Court find Chevron deference
| problematic, but it currently is the law of the land.
| steveBK123 wrote:
| There's been moves by the FTC to ban non-competes as well.
|
| I work in financial services so am often covered by these
| clauses. Firstly, it seems insane that unpaid non-competes are
| legal at all, to start with. Also, seeing them applied to very
| junior level and even hourly paid roles is overly onerous.
|
| While my industry pays your base salary during your "garden
| leave" even this can be misleading in more senior roles where 50%
| or more of your compensation is bonus, plus some firms cut your
| healthcare coverage on resignation as well. Some companies have
| also extended the terms as long as 18 months or longer.
|
| Further, I have been under non-solicitations with terms as long
| as 5 years which is frankly insane.
|
| So all that is to say the free market is not exactly working
| here, and seeing some legal guardrails put in place would be good
| - pay required, terms limited, benefits defined, etc.
| jfengel wrote:
| TIL "garden leave", a period of time when you are mandated to
| be out of work. Thanks.
| steveBK123 wrote:
| It's pretty good for say, 3-6 months.
|
| Long enough to reset, not worry too much about health
| coverage, and if timed right.. not miss out on a bonus cycle.
| It's also short enough that you can interview and get a job
| offer from a company willing to wait for you. Often you can
| negotiate a signing bonus at the new shop to make up for
| compensation you may lose due to deferral or bonus cycle.
|
| The firms trying to force 18 month terms are also some of the
| highest turnover shops. Arguably you'd need to demand a
| 50-75% bump to take the role since on the way out the door
| you are going to miss out on 1-2 bonus cycles. The term is so
| long you likely need to quit before finding a new job too,
| and then kick off interviewing in the last 6 months.
| pkilgore wrote:
| Importantly compared to almost all non-competes: Garden Leave
| implies you are being paid to not work.
| ghaff wrote:
| And often it's some percentage of your salary and doesn't
| include bonuses, RSUs, benefits, etc. It does make a
| company put some skin in the game and may even seem like a
| decent deal depending where you are in life but isn't a
| panacea. (E.g. MA put some much-delayed legislation in
| place a few years back over strong opposition but it's
| still something like a 50% of base pay requirement.)
| anon291 wrote:
| > Firstly, it seems insane that unpaid non-competes are legal
| at all, to start with. Also, seeing them applied to very junior
| level and even hourly paid roles is overly onerous.
|
| They're not. I mean they're legal in that you can write one and
| ask someone to sign it. But good luck getting it enforced!
|
| I went to a college where people typically went on to finance
| roles and strategy consulting. I myself worked at Bain for a
| few months before deciding it was not for me.
|
| Our corporate law professor told us the same thing. She was
| head general counsel at an aerospace company. She said ignore
| all non-competes and don't accept payment for them.
|
| If there's no payment in a contract, there's no consideration.
| A non-compete has to be signed upon resignation. So just don't
| take the resignation bonus.
|
| Moreover, it doesn't really matter because no one is going to
| put someone on the government dole in order to enforce a non-
| compete. It's safe to ignore in almost all circumstances. Why
| would a state possibly take on yet another unemployment figure
| in order to protect a private company's interest? They want the
| tax money.
|
| Non-solicitation is different.
|
| IANAL, but take that as you will. I've followed this advice
| religiously and nothing happens. Most companies will be weirded
| out when you don't take the resignation bonus, but as long as
| no money changes hands, they have no power over you.
| steveBK123 wrote:
| Fair. Something that is common practice but not going to hold
| up in court are uhh quasi-legal.
|
| A problem is that if you are moving within an industry that
| enforces non-competes they all generally respect each others
| for fear of invalidating their own. They also tend to know
| the terms of each others contracts as well so you can't
| exactly bluff your way through.
|
| So your new prospective employer will not do anything that is
| seen as soliciting you to break the prior contract.
|
| Also at the low end it works especially well because you
| won't take the risk of court / having to hire a lawyer.
| ghaff wrote:
| One of the issues is that many small firms are just going to
| pass if you have a non-compete. I guess you can lie and just
| say you don't but that's probably not a great way to start a
| new employment relationship. I worked for a very small firm
| and someone having a non-compete was just a hard pass from
| our COO. Just too much risk.
| tzs wrote:
| That is true now due to the FTC ban on non-competes, but it
| was not true before that. The enforceability varied widely
| from state to state. Here's a table showing how it was in
| 2016 [1]. My guess is that your corporate law professor was
| talking about enforceability in the specific state you were
| in.
|
| Also, most I've seen were required to be signed when
| employment began, not when employment ended.
|
| [1] https://beckreedriden.com/50-state-noncompete-chart-2/
| anon291 wrote:
| Overly specific non-competes are just not enforceable. Just
| tell the judge you're going to go on unemployment and
| medicaid (You can, since you have no income), and they'll
| quickly re-arrange things to make it worthwhile. Why would
| a state possibly do this?
|
| Going back to your list. Look at the 'protected
| activities'. Simply being employed in the field is rarely
| one of them. Yes, you can't take clients or poach
| employees. Some might require repayment for training, etc.
| But no one can make you unemployed and destitute for it.
| Why would any state want that?
|
| The key word in many of the tables is 'not against public
| policy', which is what it means when states don't want
| people to start taking welfare when not able to work.
|
| That being said I am glad states are now pre-emptively
| fining businesses that attempt to use these. It shouldn't
| be up to employees ignoring what they presume to be valid
| contracts.
| ClumsyPilot wrote:
| What does free market mean, in this particular case, even
| philosophically?
|
| Non-compete, as in preventing people from selling their labour,
| a violation of free market? Or is stopping people from agreeing
| to non-competes, a violation of free market?
|
| Is allowing a man to sell himself into slavery free market, or
| is banning such practice something that helps to ensure the
| market stays free?
|
| The more American idea of a free market is a kind of natural
| law of the jungle, where the strongest wins.
|
| The more European idea of free market is that it can only exist
| with rigorous protections and watchful eye of a government
| steveBK123 wrote:
| What makes them anti-free-market in my mind is.. monopsony.
|
| Non-competes are a feature of monopsony because in a given
| industry all the buyers of labor enforce them. This is a
| concept related to monopoly, but on the demand rather than
| supply side. Even bad old USA takes (an increasing) hard line
| on monopolies.
| wdreynolds1 wrote:
| There is nothing in this ruling that is new as it relates to non-
| competes or non-solicitation. Overly broad non-compete's and non-
| solicitation clauses have always been unenforceable.
|
| They must be specific and unambiguous.
| downrightmike wrote:
| I had an employer only offer severance if I signed a new non
| compete for FIVE years and to get around the overly broad
| language they inserted clauses on every single thing that
| stated that there was no way around the non compete even though
| the state would find it illegal. My state has precedent that if
| the non compete doesn't allow a person to earn a living, they
| throw it out and if one clause does that, the whole thing is in
| valid. So the employer wrote their new non compete to
| completely try to circumvent it. They also paid shit, so
| severance wasn't worth it.
| bushbaba wrote:
| While great, it's a huge blow to California who historically
| benefited from the innovations of non-competes being non-
| enforceable.
| bbarn wrote:
| Why exactly?
| ghaff wrote:
| I'm very opposed to non-competes except in specific scenarios
| like selling a business (and non-solicitation agreements often
| make sense). However, I'm also very skeptical of the argument
| that CA's success in certain industries is remotely the result
| of unenforceable non-competes.
|
| There often seems to be an assumption that non-competes are the
| norm everywhere else and, while they certainly exist (and some
| firms/industries are notorious for enforcing them) that just
| isn't the case anything like universally in my experience.
| phyzome wrote:
| Or it's exactly the opposite, depending on how mobile you think
| companies are.
| gigatexal wrote:
| Nice. Here's hoping the extra freedom causes wages to rise and
| employers work to keep employees with benefits instead of
| handcuffs.
| jmyeet wrote:
| When you learn about enclosures [1] you cannot stop seeing them
| everywhere. The entirety of intellectual property is just an
| enclosure. Rather than promoting innovation it just promotes
| rent-seeking [2] or intermediation.
|
| Noncompetes fit this bill. They've been weaponized by private
| equity to medical practices. A PE firm will come along and buy up
| all the medical practices in an area. It's hard to resist that
| large buyout offer. The staff will then be put on noncompetes
| that essentially prevent them from practising in their area at
| all if they leave.
|
| This problem has gotten so bad that even places like Florida are
| seeking to ban medical noncompetes [3].
|
| If you've wondered why your vet bills have gotten so large, well
| it's the same playbook [4].
|
| Restraint on trade (such as noncopetes) is used to suppress wages
| and jack up prices for absolutely nobody's benefit other than the
| PE fund's investors. Absolutely no value is being created here so
| I'm glad to see the NLRB, the FTC and yes, even Florida take
| action here.
|
| I've previously thought that noncompetes may make sense in very
| limited circumstances and, if so, companies should have to pay
| through the nose. Example: when you quit the company has a one-
| time option to exercise that noncompete. If they do, they have to
| pay you out for the entire term. That payout? Take your highest
| earning year in the last 10 years. Double it. That's how much you
| have to be paid per year. Then we'll see how badly companies
| really need noncompetes.
|
| Even then I think I'd be just as happy if they were entirely
| illegal.
|
| [1]: https://en.wikipedia.org/wiki/Enclosure
|
| [2]: https://en.wikipedia.org/wiki/Rent-seeking
|
| [3]:
| https://www.hklaw.com/en/insights/publications/2024/02/flori...
|
| [4]: https://stateline.org/2024/03/29/vets-fret-as-private-
| equity...
| giantg2 wrote:
| That non-solicitation clause is interesting. My company forbids
| managers from providing references for employees. I wonder if
| that could also be considered an unfair labor practice since it
| negatively affect your ability to get a different job.
|
| Honestly, I'm starting to see that my company is doing a lot of
| shady employment things. I guess most companies do.
| BenFranklin100 wrote:
| The reason this is done is that litigious ex-employees might
| try and sue for defamation. Even if the lawsuit is scurrilous,
| it will cost a company $20-30K to defend itself, so many
| companies have decided it's not worth the risk.
| giantg2 wrote:
| I can see why HR won't provide performance references. But
| I'm talking about if I'm a star employee and want to leave, I
| ask my boss if they'll write me a recommendation letter or if
| I can list them as a positive reference on my apps, they
| aren't allowed to by the company and may even get fired for
| it.
| BenFranklin100 wrote:
| That's what I am talking about too. Companies don't allow
| any sort of references of former employees, positive or
| otherwise, and from any level of management. It's too hard
| to police and much simpler to just not allow the practice.
| It's frustrating from the employee and prospectus employer
| perspective, but I see why companies do this. Bad apples
| can be very time-consuming and expensive to deal with.
| giantg2 wrote:
| There's no valid reason for it though. Hand me a letter
| of recommendation and if I don't like it, I simply won't
| share it with the next employer. If I'm the one who has
| the decision to share the recommendation, the
| responsibility should be on me.
| mattmaroon wrote:
| He is explaining to you the valid reason, and you are
| simply not understanding it. People sue, very often, even
| in spots where the responsibility should have been on
| them.
|
| Companies stopped doing these sorts of things because
| companies got sued. It is very easy to bring a lawsuit,
| And while it is, perhaps not very easy to win it, someone
| still can easily have six figures in defending
| themselves.
|
| If you don't like that, OK, I don't either, it is awful.
| But it is a rational response to a problem that happens.
| giantg2 wrote:
| "He is explaining to you the valid reason, and you are
| simply not understanding it."
|
| Oh I understand it. But do you see the big picture here?
| People should be sueing for them not writing the letter.
| The NLRB should be taking cases for this as well. This is
| almost as anticompetitive as non-competes.
|
| Edit: shouldn't have said for not writing the letter,
| just for a policy forbidding the writing of letters.
| nickff wrote:
| What law would this policy violate? What's the basis for
| the suit? That you think it might be anti-competitive
| because it reduces labor mobility?
| giantg2 wrote:
| Based on the article, it seems that this could be
| reasonable to pursue. You don't need to break a law for a
| lawsuit, just show damages resulting from another's
| actions. If you convince the NLRB or a jury that not
| providing references suppress your ability to get a job
| or increase your salary at the next job, that could be
| all that is needed. But this would be applicable to laws
| on anticompetitive behavior, but that's more of an NLRB
| thing.
| JumpCrisscross wrote:
| > _People should be sueing for them not writing the
| letter_
|
| This gets awfully close to compelled speech. The only way
| this could be done is if we remove the right for
| employees to sue in respect of the content of the letter,
| which in turn opens up avenues for retaliation.
|
| Written recommendations are bullshit. The ban should be
| on requesting them.
| giantg2 wrote:
| My edit shows what I meant. I wouldn't support requiring
| references, just preventing companies from having
| policies forbidding them. I've had manager who would have
| gladly written me a great recommendation but policies
| prevented it.
|
| A ban on requesting them would also work.
| JumpCrisscross wrote:
| Maybe a law shifting liability for references from the
| employer to the person providing it is the fix.
| winstonewert wrote:
| But what if you get a bad letter of recommendation and
| sue about it? What if the manager refuses to write you a
| letter of recommendation and you sue them? The easiest
| solution from the company is simple: don't allow any
| letters of recommendation.
|
| That is what my former manager told me when I left my
| previous employer. He thought highly of my skills, but
| couldn't write me a letter due to company policy
| motivated by these concerns about being sued.
| BenFranklin100 wrote:
| This is an example of how labor laws can hurt high-
| performing employees. Another is salary transparency
| requirements.
| giantg2 wrote:
| But there isn't a labor law supporting that. It's simply
| an anticompetitive corporate policy.
| BenFranklin100 wrote:
| 'Established case law" or 'Legal precedence' to be more
| precise. Thank you. Ex-employees do have generous legal
| ground to sue for defamation.
|
| Edit: and remember, this is to file a suit, not win a
| defamation suit, which can be difficult. However it is
| very expensive for an employer to defend itself, easily
| tens of thousands if not six figures of dollars. How the
| game is played is a disgruntled ex-employee files a suit
| and then tries to settle for low tens of thousands of
| dollars, a portion of which goes to the employment
| attorney they hired.
| giantg2 wrote:
| What if I sue and have the NLRB open a case against them
| for the unfair, anti-trust labor practice of not allowing
| any letters to be written?
| crazygringo wrote:
| You'll lose because it _isn 't_ unfair or anti-trust.
| It's not nice, but there's nothing illegal about it.
|
| The first amendment is widely interpreted to mean that
| you can't compel speech. Requiring a company to write
| recommendation letters would be compelling speech. That
| would be unconstitutional.
|
| (And it doesn't matter if an individual manager would
| like to write a letter of recommendation but corporate
| policy is against it. The manager is paid by the company,
| would be sharing company information, and is an agent of
| the company in this regard.)
| kedean wrote:
| > Requiring a company to write recommendation letters
| would be compelling speech
|
| It would, but that's not what's being discussed.
|
| The accusation is that the companies are _restricting_
| speech by saying that managers cannot provide a
| reference, even if they clearly state in said reference
| that the views are their own and not that of their
| employer. Nobody is trying to compel anyone else to
| provide a reference, the idea is that nobody should be
| prohibited from it, especially since for long term
| employees leaving on good terms their manager(s) is /are
| probably one of their best references.
| SpicyLemonZest wrote:
| Managers and supervisors are not protected by the NLRA,
| so whether they might like to provide a reference isn't
| really a matter of concern for the NLRB. (In practice,
| managers provide references informally all the time, and
| I can't imagine a company actually taking action against
| them for that unless the reference causes some huge
| problem.)
| giantg2 wrote:
| I know a manger at my company that provided a reference
| and was reprimanded for it. They even told him I'd he
| ever does it again, he's fired. I heard of at least one
| other manager who was actually fired.
| ghaff wrote:
| If there were a formal company policy, I'd probably
| either demure or, if I felt strongly about it, make sure
| it was over beers at the bar or in some other venue that
| there was no record.
| crazygringo wrote:
| Companies are allowed to restrict speech by their
| employees about company information. Otherwise everyone
| would be allowed to leak every trade secret.
|
| A manager's evaluation of another employee's performance
| is internal company information. There's no reason that a
| company should be compelled to share that information
| externally.
|
| It doesn't matter if the manager wants to share it, any
| more than the manager wants to share all the source code
| the employee has written.
|
| _Companies_ are allowed to determine what gets shared by
| their current employees, end of story. On the other hand,
| it is unconstitutional for the _government_ to override
| that.
|
| There are exceptions for things like public companies
| that are compelled to release certain data on a quarterly
| basis in exchange for the benefits of being publicly
| traded. And plenty of information can be compelled to be
| shared _privately_ with the _government_ , whether taxes
| or for health inspections or whatever.
|
| But absolutely _not_ forcing companies to allow their
| employees to talk publicly about other employees '
| performance.
| ivan_gammel wrote:
| >But what if you get a bad letter of recommendation and
| sue about it?
|
| This is trivial to solve: both former employer and
| employee sign the letter, declaring that information in
| it is full, correct and they have no objections. It would
| be much harder to sue if you previously agreed that the
| letter is ok for you.
| WalterBright wrote:
| A negotiated letter is worthless.
| dec0dedab0de wrote:
| there is no way to verify that's real though. Anyone
| could have a friend write a letter for them and say it's
| from an old boss.
|
| when you have current employees talking about former
| employees on behalf of the company, that is the same
| thing as the company talking about them.
| giantg2 wrote:
| You could call to confirm it, have it notarized, etc. But
| that's not really an issue since this practice used to be
| common and is sill common in many forms of employment
| today - some government jobs, academia, etc.
|
| I don't see it as the same as the company speaking.
| Things like concerted efforts by the workers to make
| conditions better are protected and not considered
| company speech. I guess it's only because they're
| managers that they don't qualify.
| sbuttgereit wrote:
| Also consider this case. A manager writes a couple of
| glowing letters of recommendations for a couple of former
| employees that did great on the job. Wonderful. Now a
| poor performer asks and the manager doesn't feel
| comfortable writing a recommendation at all: either
| they'd risk having to be candid or there's simply no
| basis for "recommendation" and so the manager refuses.
|
| Well, now even the omission/refusal to write such a
| letter might get you sued. A policy that says our
| managers just don't write such letters is absolutely the
| safest. 1) the company and its managers don't identify in
| any way their thoughts on performance in a way that might
| be found prejudicial; 2) they avoid the risk of a poorly
| worded recommendation that could be called prejudicial;
| 3) they avoid having to monitor the standards and risks
| of such statements across possibly many managers that
| might write such letters absent such a rule.
| giantg2 wrote:
| You forgot the biggest benefits to the company -
| increased retention rates and salary suppression.
| BenFranklin100 wrote:
| You forgot the biggest drawback to employers: not being
| able to get honest feedback about the prospective
| employee from the previous employer.
| ghaff wrote:
| I've provided references from former co-workers, clients,
| etc. Never from an actual manager. Also no idea if
| references have ever been checked or not--especially
| given I knew a lot of folks at the hiring company.
| nickff wrote:
| Someone might sue because (they think) a letter wasn't
| effusive enough to get them a job they wanted, or because
| someone else got a letter and they didn't.
| giantg2 wrote:
| And why can't I sue for this being an unfair labor
| practice? There should be more risk on this side of it
| than the other.
| mattmaroon wrote:
| It is not an unfair labor practice, nobody owes you a
| letter of recommendation.
|
| Corporations that have this policy always tell you that
| when you check on a prospective employee. " Our policy is
| only to give dates of employment and X worked here
| from..."
|
| It is not a negative when you check on somebody and hear
| that. I've heard it many times. I can hardly take it as a
| sign of a bad employee when their company simply has a
| policy not to give references
| AdrianB1 wrote:
| > nobody owes you a letter of recommendation
|
| It some countries they do. A friend sued his former
| employer because the letter of recommendation he got was
| not good enough. Strange thing is they agreed and also
| contacted him to come back working for them. But it
| depends on the country, in some countries letters of
| recommendation are very rare, I wrote a couple in more
| than 20 years, basically every time someone that worked
| for or with me asked for one.
| ghaff wrote:
| In the US, my sense is that letters of recommendation are
| pretty rare (at least past school admissions where
| they're pretty worthless). Oh, there's a ton of informal
| networking but very little official you should hire this
| person (or especially) run away now. I'd never do the
| latter.
|
| Companies at least used to ask for references on resumes
| in the US but I'm not sure how common that is at this
| point and it was usually co-workers/clients/etc, and not
| sure how often it was even checked.
| giantg2 wrote:
| They don't have to owe you something for it to be unfair.
| It's anticompetitive behavior that makes getting another
| job harder. It's fine if they don't write you a letter.
| What isn't fine is a policy that forbids the writing of
| letters.
| crazygringo wrote:
| It's not really anticompetitive though. It doesn't make
| getting another job harder because virtually _nobody_ is
| getting references. Everyone 's on the same playing field
| here.
|
| Letters of recommendations, or even reference phone
| calls, are something that are widespread in academia and
| in entry-level service jobs. Like if you want to be a
| server or bartender, they want to make sure you were
| actually showing up at your last job and didn't steal
| money from the register.
|
| They're not really a thing in the corporate world. Your
| technical expertise, certifications, and dates of
| employment pretty much speak for themselves. At least in
| the US.
| giantg2 wrote:
| There are some people getting references. Most places
| also ask for references. Informally, all the people
| talking about jobs found via their network are
| references.
|
| It is absolutely harder finding a job without references
| than with references. You also have less leverage for
| negotiating salary.
|
| "Your technical expertise, certifications, and dates of
| employment pretty much speak for themselves."
|
| This isn't true at all. Why do interviews if you just
| make the decision off the resume? Why do code screens or
| LeetCode?
|
| I have tons of experience and a long tenure, a masters
| degree, multiple certs, etc yet I'm a low performer with
| a disability who struggles to even get interviews. But
| you wouldn't know that by looking at my resume. At one
| point I was a high performer and a letter of
| recommendation could have really helped me.
| crazygringo wrote:
| I never said make a decision off of a resume. When I said
| "your technical expertise", I meant as assessed by
| interviews, code screens, etc.
|
| I've never even been asked for references at any
| technical job in my life. HR departments generally _do_
| make some attempt at verifying employment, doing a
| background check, etc.
|
| So no, in these cases it's _not_ harder. There 's _no_
| leverage either way.
|
| Because what do reference letters even mean? How do you
| know the person writing the letter is even telling the
| truth? This is somebody you've never met and don't know
| at all. How do you know they don't unfairly hold a grudge
| against this ex-employee because they took it personally
| when they quit? Or how do you know they don't just write
| glowing references for everyone because they know "it's
| tough out there" and "everyone deserves a second chance"?
|
| I always assumed this is why I've never been asked for
| references in my professional career, because the
| companies I applied to knew that references aren't worth
| the paper they're written on.
| giantg2 wrote:
| These are all concerns, but it's still common in stuff
| like academia and government jobs. Even in industry, I
| see requests for references on about half of applications
| these days.
|
| The easy fix here is banning requests for references.
| winstonewert wrote:
| I suspect it's much easier for someone to sue on the
| claim of being unfairly discriminated against than on the
| claim that a particular company policy with a legitimate
| stated justification is an unfair labor practice.
| giantg2 wrote:
| Just because there's a justification doesn't make it an
| excuse to participate in anticompetitive behavior. The
| NLRB getting involved seems like a bigger risk than the
| letter of recommendation.
| winstonewert wrote:
| You are wrong. Since you show no signs of recognizing
| that, or providing any reason to back up your assertions,
| I'm done with this conversation.
| giantg2 wrote:
| "You are wrong. Since you show no signs of recognizing
| that, or providing any reason to back up your assertions,
| I'm done with this conversation."
|
| Lol ok. You realize I can say the exact same thing to
| you...
| winstonewert wrote:
| The difference is that me and others have repeatedly
| explained why you are wrong in this thread, and you keep
| repeating the same nonsense assertions.
| giantg2 wrote:
| I thought you said you were done?
|
| You've offered no facts to support what little you've
| said. You "suspect" some things and have been told some
| other things by your manager. I too have been told things
| by managers and suspect things myself. But I guess
| because it's your opinion, everyone else's opinion must
| be wrong.
| SoftTalker wrote:
| Most companies will only verify dates of employment, and
| possibly whether the employee is eligible for rehire
| (yes/no, without getting into reasons).
|
| Writing a letter of reference is more and more a risky
| thing and even in non-employment situations, more people
| are reluctant to do it.
| ska wrote:
| That's what HR will do.
|
| Most companies don't constrain an individual employee
| from providing a recommendation. People might not want to
| do it, but that's a different issue.
| pjc50 wrote:
| So .. have they stopped asking for them? Or it this a
| "We'll defect in prisoner's dilemma with no consequences to
| us" move?
| segmondy wrote:
| Can you provide an example article or case law when this
| happened?
| lowbloodsugar wrote:
| Again, that sounds like a good reason, but it's not the
| reason, and it would be easy to solve. The reason is wage
| suppression.
| ungreased0675 wrote:
| I'm curious if your company asks for references when hiring
| people? I'd guess they do, which makes the policy unethical and
| hypocritical.
| BenFranklin100 wrote:
| --
| Ar-Curunir wrote:
| You're a different person than the OP...
| SoftTalker wrote:
| Mostly no, because almost no employer will provide them.
| workingdog wrote:
| There's _always_ a reference.
|
| It doesn't have to be the boss; it could be a co-worker.
| Generally written, it is hard to get, but almost always
| available with a phone call after hours.
|
| Asking the person, "Would you rehire this person?" or "Would
| you like to work with this person?" has a 95% answer rate and
| says everything.
|
| If the prospect can't connect you with a phone call to one of
| their co-workers, that tells us what we need to know.
| crazygringo wrote:
| What country are you in and what type of job?
|
| In the US at the corporate level, this would be _extremely_
| unusual.
|
| Not to mention how is it even useful? It's the easiest
| thing in the world to fake by passing along the phone
| number of a friend claiming to be a co-worker and full of
| effusive praise for you. It's not like most companies list
| the phone numbers of their employees somewhere publicly
| that you could verify.
|
| Decades ago when I was a bartender, it was common practice
| for your "reference" to be a buddy who would pretend to be
| the manager at your last restaurant.
| koolba wrote:
| > Decades ago when I was a bartender, it was common
| practice for your "reference" to be a buddy who would
| pretend to be the manager at your last restaurant.
|
| There's a great clip of an Aussie radio show doing a
| prank like this. They call a random guy up and pretend
| that they have his number as a reference, and that he's
| gonna get a call from some potential employer (who are
| considering g higher if the prankster). The random guy
| immediately agrees to say only great things about him and
| then the actual "reference call" is actually well done.
|
| https://twistedsifter.com/videos/hamish-and-andy-random-
| job-...
| gambiting wrote:
| >>Asking the person, "Would you rehire this person?" or
| "Would you like to work with this person?" has a 95% answer
| rate and says everything
|
| I don't know of any company in the UK that would ever
| answer such a question, maybe a small shop that hasn't
| learnt better yet. Companies will provide references that
| always just say "this person has worked here for X years",
| no one would ever say anything either positive or negative.
| amanaplanacanal wrote:
| Before I retired (in the US), that was the policy where I
| worked.
| ivalm wrote:
| If you ask HR then that's the answer, if you ask
| employees they will give you a pretty useful reference
| (having done reference calls quite a bit, basically from
| folks at every major US tech company).
| ghaff wrote:
| Yeah. You don't formally ask for recommendations but
| people know people and that's how it works. (Which is why
| a lot of job hunting is about networks whether you like
| it or not.)
| ivan_gammel wrote:
| It should be unfair labor practice. Also, what does it achieve?
| It is not going to increase retention significantly, on the
| contrary, they will likely get lower eNPS.
|
| By the way in Germany employers are legally obliged to provide
| a reference (Arbeitszeugnis). Most of them that I have seen
| were too positive and sometimes obviously exaggerated.
| giantg2 wrote:
| Yeah, I don't think it should be required, but I think
| policies banning managers from writing letters are also
| wrong.
| vessenes wrote:
| There's a complex balance of power in the US (and Germany)
| around these. A common reason companies ban references is to
| protect the company (and occasionally employee <- manager)
| from lawsuits if the reference is negative.
|
| In Germany this has turned into a legal climate where _only_
| positive reviews are granted, creating a set of tiered shaded
| meanings inside positive reviews that stand in for
| 'unacceptable' to 'brilliant'.
|
| At any rate, changing one part of the system, e.g. forcing
| referrals as in Germany would no doubt change other ways the
| system works in the US as well.
| beryilma wrote:
| Yes, but the same companies in the US have no problem
| asking for professional references when they are the ones
| hiring you.
| AceyMan wrote:
| References are going the way of the dodo bird, anyway. In
| my circles, job seekers don't bother offering them and
| employers are ending the practice of asking for them.
| (411: I'm in the LAX market & a best friend is an HR
| executive.)
| ghaff wrote:
| Yeah. They're probably still sort of a pro-forma sort of
| thing in many cases but I'd be surprised if people still
| checked them for professional jobs in a systematic way.
|
| Of course, doesn't mean you don't check in with folks you
| know who have worked with the person at your company and
| elsewhere.
| simonbarker87 wrote:
| Of course it is. Non-competes are unenforceable in the UK as you
| can't stop someone earning a living and if their skill or
| knowledge is that specific or valuable that they may not be able
| to get a job anywhere not covered in the non-compete.
|
| Want someone to not work for a competitor until their secret
| knowledge is out of date? Pay them gardening leave.
| quietbritishjim wrote:
| The UK government was due to introduce legislation ("when
| parliamentary time allows", which apparently it didn't) to
| limit non-complete clauses in employment contracts to a maximum
| of 3 months. That seems like implicit recognition that non-
| complete clauses longer than 3 months are currently valid.
| simonbarker87 wrote:
| Can't speak to that explicitly but the advice I was given by
| 2 solicitors on the topic was "they're not enforceable and
| won't stand up in court, they can't stop you earning a living
| with your skills"
| KennyBlanken wrote:
| No, it implies that's what legislators negotiated between
| different factions, or between legislators and lobbyists, or
| were outright bribed by lobbyists to go with.
|
| Ie, they wanted 1 month, but lobbyists wanted 6 months,
| legislators pushed back, and everyone compromised at 3.
| mannyv wrote:
| The Supremes have been on a tear vs administrative judges, so
| expect this to get swatted down. There are other agencies in the
| non-compete mix that are better suited to make these sorts of
| policy decisions. This court would rather have agencies and
| politicians do their jobs when it comes to this stuff.
| red_admiral wrote:
| This sounds reasonable. If you train as a plumber, work for ACME
| Plumbing Inc. and then leave, being told you can't work anywhere
| else in your trade for 24 months means you should do what exactly
| - become an uber driver for a couple of years?
| paulus_magnus2 wrote:
| No need to ban it. Just automaticly award full salary for 2x the
| noncompete period they put in your contract, payable in full a
| week after contract termination.
| callalex wrote:
| Suddenly your salary is $1/yr and your bonus is $1M/yr. (This
| really happens in the USA financial sector.)
| AgentOrange1234 wrote:
| Employees won't tolerate that due to not being able to get
| mortgages? Our megacorp recently upped base salaries due to
| this.
| Dr_Birdbrain wrote:
| Employees definitely tolerate this. As said above, this
| already happens in industry, and also for many years Amazon
| used to cap salaries at some hilariously low number--I
| think like 180k. That may not seem low until you try to buy
| a house in the Bay Area and lenders laugh in your face.
|
| People would either be part of a two-income household or
| wait for their stock to vest, but for many years they
| tolerated it fine.
| blackeyeblitzar wrote:
| I agree that non competes are unfair but also think the NLRB has
| too much power and is effectively legislating.
| nabla9 wrote:
| If non-compete is must, you can always make garden leave
| contract.
|
| Employee must stay away from work during the notice period, while
| still remaining on the payroll. 6 or 12 month garden leave is
| common in financial sector.
| WalterBright wrote:
| I'm curious if the NLRB has ever ruled in favor of business.
| ok_dad wrote:
| You could probably look that up. Instead you made a stupid
| comment meant to insinuate something sinister.
|
| Edit: Here ya go Walter, I guess your compiler skills are
| better than your google skills. Several cases here were in
| favor of the business.
|
| https://www.nlrb.gov/cases-decisions/decisions/notable-board...
| WalterBright wrote:
| Thanks for the link. But I'm not going to spend all day
| reading those decisions (the language is so legalese it's
| hard to parse what they're talking about). I'll just say that
| every time the NLRB is in the news, I've never read of a case
| where they ruled for the business.
|
| If you want to point to a decision in particular, I'll take a
| look at it.
|
| > you made a stupid comment meant to insinuate something
| sinister
|
| It's a fair question.
| ok_dad wrote:
| Not fair at all, insinuating something then doing no work
| to verify is lazy. You're smarter than that! Put in the
| effort necessary to research your positions.
| Kiboneu wrote:
| You could read the comment guidelines. Instead you made an
| unnecessarily insulting comment with no real substance.
|
| Since you clearly have not bothered to read them, the
| guidelines are at the bottom of the site, or maybe try
| googling it.
| ok_dad wrote:
| Walter constantly says things that are incorrect or lazy
| and no one calls him out, so this time I did so. I'm aware
| of the guidelines and the harsh language was because that's
| all he understands. As you can see, he didn't even care to
| read one or two decisions, because they're in legalese.
| This is a man who writes compilers for a living, I would
| think he was smart enough to read some documents and
| determine for himself whether his "question" was answered
| there or not, but he literally doesn't care.
|
| Asking leading questions is always put forth as "innocent"
| but it never is with these types of people.
|
| I don't even know why I'm defending myself to you, I'm
| comfortable with what I've written here today. If dang
| thinks it's rude he can ban my comments.
| WalterBright wrote:
| > he didn't even care to read one or two decisions,
| because they're in legalese
|
| I did read the first two, but understood neither, because
| they were in legalese. I also googled using my exact
| question, and none of the results were anything but
| generic articles about the NLRB.
|
| > Asking leading questions is always put forth as
| "innocent"
|
| I didn't say it was "innocent", please don't make up
| quotes and put them in my mouth. I said it was a "fair"
| question. And it is.
| Kiboneu wrote:
| > I don't even know why I'm defending myself to you, I'm
| comfortable with what I've written here today.
|
| Seems contradictory. Maybe this is a cue to think
| honestly about why you have to attempt to defend
| yourself.
| WalterBright wrote:
| > Several cases here were in favor of the business.
|
| All you needed to do was cite one. Please do.
| ein0p wrote:
| If it goes like this the Supreme Court might declare water to be
| wet, much to the horror of corporate America. Of course it's
| unfair to limit one's employment options without just
| compensation for it.
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