NLRB judge declares non-compete clause is an unfair labor practice(nlrbedge.com)
nlrbedge.com
NLRB judge declares non-compete clause is an unfair labor practice
https://www.nlrbedge.com/p/in-first-case-of-its-kind-nlrb-judge
246 comments
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.
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.
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.
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.
>tiered shading positive reviews
That's funny, medicine works the same way. Your medical school makes a "packet" for residencies that summarizes you, and it's a bit of an honor system that the medical school should be forthcoming with shortcomings lest nobody trust the school. But of course, the medical school doesn't want to talk trash about its own graduates. So they have a system of code words i.e. "I recommend" = low, "I enthusiastically recommend" = medium, "???" = high.
As far as non-competes, the interesting thing there is I mostly work in science/programming where these are seen as jokes. "Why I can't make a living with this non-compete, non-enforceable" (exception is when they PAY you to not work, which is how it should be). So non-competes are seen as toothless. However I was hanging out with salespeople and they were 100% like "bro, these are no joke, I am banned from talking to my old clients for 1 year, they ARE totally enforceable in sales". And of course if you're starting a new sales job at some competitor, that's a bad look if your hiring arrives alongside a lawsuit, so these guys are properly afraid of non-compete scenarios
As far as non-competes, the interesting thing there is I mostly work in science/programming where these are seen as jokes. "Why I can't make a living with this non-compete, non-enforceable" (exception is when they PAY you to not work, which is how it should be). So non-competes are seen as toothless. However I was hanging out with salespeople and they were 100% like "bro, these are no joke, I am banned from talking to my old clients for 1 year, they ARE totally enforceable in sales". And of course if you're starting a new sales job at some competitor, that's a bad look if your hiring arrives alongside a lawsuit, so these guys are properly afraid of non-compete scenarios
Yes, but the same companies in the US have no problem asking for professional references when they are the ones hiring you.
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.)
Your circle is not representative of the job market.
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.
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.
Yeah, I don't think it should be required, but I think policies banning managers from writing letters are also wrong.
I’m curious if your company asks for references when hiring people? I’d guess they do, which makes the policy unethical and hypocritical.
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.
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.
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.
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.
> 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-...
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-...
>>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.
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.
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).
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.)
Before I retired (in the US), that was the policy where I worked.
Mostly no, because almost no employer will provide them.
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.
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.
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.
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.
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.
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.
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.
"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.
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.
> 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.
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.
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.
A ban on requesting them would also work.
Maybe a law shifting liability for references from the employer to the person providing it is the fix.
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?
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.
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.
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.
You forgot the biggest benefits to the company - increased retention rates and salary suppression.
You forgot the biggest drawback to employers: not being able to get honest feedback about the prospective employee from the previous employer.
It's a noisy signal.
Some employers still answer a binary question "Eligible to re-hire? Yes/no" and that tells a lot in one bit of information. Of course some employers are vindictive and they just say no out of spite. Others will not answer anything except confirm dates of employment. Or they provide a good reference on a bad employee just so they leave without having to fire them.
Some employers still answer a binary question "Eligible to re-hire? Yes/no" and that tells a lot in one bit of information. Of course some employers are vindictive and they just say no out of spite. Others will not answer anything except confirm dates of employment. Or they provide a good reference on a bad employee just so they leave without having to fire them.
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.
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.
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?
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.)
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.)
> 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.
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.
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.
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.
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.)
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.
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.
>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.
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.
A negotiated letter is worthless.
Depends on how you read it. There’s a big range of possibilities between „we won’t write bad things“ and „this person is a rock star“.
This is an example of how labor laws can hurt high-performing employees. Another is salary transparency requirements.
But there isn't a labor law supporting that. It's simply an anticompetitive corporate policy.
‘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.
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.
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.
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.
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.
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.
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.
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.
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
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
> 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.
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.
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.
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.
In Europe it is very different; in Romania they are almost never used, in the Switzerland they are almost mandatory.
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.
It doesn't make your getting a job harder. And even if it did, it's not your employer's responsibility to help you get another job. Do you think they should also be required to give you paid leave to go interview elsewhere? They shouldn't unreasonably hinder you, but they are under no obligation to help you go work elsewhere.
Also, no sane employer would be like "well this guy worked at a corporation that doesn't give references, guess I can't hire him." If you think that's how people who hire think, you must not hire. It isn't.
It would be a problem if a corporation gave references to some people and then declined to other times, because then it could be construed as negative, which is exactly why they have that policy.
Also, no sane employer would be like "well this guy worked at a corporation that doesn't give references, guess I can't hire him." If you think that's how people who hire think, you must not hire. It isn't.
It would be a problem if a corporation gave references to some people and then declined to other times, because then it could be construed as negative, which is exactly why they have that policy.
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.
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.
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.
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.
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.
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.
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.
The easy fix here is banning requests for references.
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.
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.
To attempt a more measured response: given that the NRLB hasn't gotten involved in any company with this policy that's clearly not true.
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.
"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...
Lol ok. You realize I can say the exact same thing to you...
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.
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.
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.
I'm sorry for my earlier responses. I was becoming ill, didn't realize it, and that messes with my temper. One day I'll learn not to argue with people on the internet when that happens.
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.
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.
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.
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.
So .. have they stopped asking for them? Or it this a "We'll defect in prisoner's dilemma with no consequences to us" move?
Can you provide an example article or case law when this happened?
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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.
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> 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
Huh... TIL
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
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
> 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.
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.
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.
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.
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.
How dare you accuse me of working with PHP!
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.
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.
>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.
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.
Yes, it makes sense from that perspective, I was just surprised that it's illegal. I live in an "at will" state where you can be fired (or quit) for any reason or no reason. This is federal employment law however, which I guess takes precidence.
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
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.
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.
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.
Missed that this is a jargon word that has a special unrelated meaning here.
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?
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?
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.
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.
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.
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.
> "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?
I don't follow. It's not permissible but these companies just blatantly ignore the law and ask it anyways? Or it is permissible?
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.
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.
So with very little risk, they do it.
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.
So instead, lying on your answer is not sue-able. Which makes including such questions ineffective.
Presumably they ignore the law.
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.
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.
> 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.
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.
> 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.
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.
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?
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?
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...
https://www.nlrbedge.com/p/wall-street-journal-is-mad-at-wel...
"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.
(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.
"You fucking asshole... for prohibiting discussions of union organizing."
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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.
> 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.
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?
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.
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.
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.
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.
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.
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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?
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.
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.
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.
I don't think omitting some of your old positions that you think are irrelevant amount to lying.
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.
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.
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.
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.
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.
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
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
> 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.
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.
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.
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.
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.
People are paid to find matching talent. Talent isn’t paid to be truthful on resumes.
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
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
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.
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.
Okay - that makes a bit more sense, not having to list your involvement with a union.
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.
This is broadly similar in principle to laws like those in many places allowing one to not disclose spent criminal convictions.
[deleted]
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?
So, all you have to do to completely lie on your resume and keep employed, is pretend to be union organizing?
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.
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.
> 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.
You can lie about your union involvement. You can't make up qualifications you don't have.
Inventing qualifications is probably still not legal.
Now, not mentioning a job in the past, or some details of it, are a different case.
Now, not mentioning a job in the past, or some details of it, are a different case.
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.
frapaconi(1)
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jpambrun(4)
As it should be
Care to elaborate? I can't think of any argument for this position.
Organizing a union once in your employment history would bar you from employment at a ton of companies otherwise
What is this about then. Obviously you can omit stuff on your resume. I take offense at adding fake experiences.
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.
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.
This isn't about adding fake experiences, though, no? It's about omitting experience you've had.
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.
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).
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).
Are there any other employers it’s legal to lie about? I don’t like the idea, even though I understand the goal.
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.
Nice. Here’s hoping the extra freedom causes wages to rise and employers work to keep employees with benefits instead of handcuffs.
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.
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.
> 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.
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.
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/
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/
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.
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.
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.
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.
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.
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
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
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.
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.
TIL "garden leave", a period of time when you are mandated to be out of work. Thanks.
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.
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.
Importantly compared to almost all non-competes: Garden Leave implies you are being paid to not work.
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.)
silverquiet(3)
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.
Suddenly your salary is $1/yr and your bonus is $1M/yr. (This really happens in the USA financial sector.)
Employees won’t tolerate that due to not being able to get mortgages? Our megacorp recently upped base salaries due to this.
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.
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.
Can't you count bonuses that are consistent for two years?
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?
How much authority/jurisdiction does this judge/ruling have? It seems like the kind of thing that might easily get appealed and lost.
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.
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.
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.
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.
That's exactly what I was wondering, thank you!
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.
> 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.
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.
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.
Edit: Make that at least three times: they've also capped the civil service which has just caused an explosion in contractors.
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.
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.
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).
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.
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.
> 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
> 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.
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.
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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.
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.
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...
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...
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.
Want someone to not work for a competitor until their secret knowledge is out of date? Pay them gardening leave.
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.
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"
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.
Ie, they wanted 1 month, but lobbyists wanted 6 months, legislators pushed back, and everyone compromised at 3.
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.
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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.
They must be specific and unambiguous.
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.
I'm curious if the NLRB has ever ruled in favor of business.
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...
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...
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.
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.
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.
> Several cases here were in favor of the business.
All you needed to do was cite one. Please do.
All you needed to do was cite one. Please do.
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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.
Since you clearly have not bothered to read them, the guidelines are at the bottom of the site, or maybe try googling it.
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.
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.
> 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.
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.
> 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 feel compelled to defend yourself.
Seems contradictory. Maybe this is a cue to think honestly about why you feel compelled to defend yourself.
While great, it's a huge blow to California who historically benefited from the innovations of non-competes being non-enforceable.
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.
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.
Or it's exactly the opposite, depending on how mobile you think companies are.
Why exactly?
I agree that non competes are unfair but also think the NLRB has too much power and is effectively legislating.
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.
Honestly, I'm starting to see that my company is doing a lot of shady employment things. I guess most companies do.