Class Action

When you've got the blues, you need to blow the horn.

 My friend, David Kaa, who blogs at ManWife Chronicles about the trials and tribulations of long-term unemployment received a cease and desist order from an attorney representing his former employer. You can read the details here. 

It seems that David's employer was upset that he was making disparaging comments about them in his blog and on a video commentary that he put up on YouTube. The lawyer said he had to quit. Not only did the lawyer insist that he quit, but also that he remove the offending posts and dismantle his website. To give legal weight to this demand the lawyer cited a non-compete agreement that David had been required to sign when he was first employed. Also cited was the Digital Millenium Copyright Act.

This last seemed a bit over-reaching to me. At issue was the fact that David's video included shots of the employer's office building with its logo displayed prominently on the side. Wait...what?! Displaying a picture taken on a public thoroughfare of a sign on a building is copyright infringement?

David called bullshit on this one, but it turns out that the lawyer is right. You can't do that, at least not for commercial purposes or private financial gain. Neither can Google it would seem, but nobody is making an issue of it with them. David's former company's logo is displayed for all to see on the street view of Google maps. Google presumably has more lawyers than God.

David did take the video down though. Who wants to waste the precious hours of blissful unemployment (no longer working for assholes) fighting with a lawyer? As my hometown pharmacist and soda fountain operator used to say, 'You can wrestle with a turd all day long, but no matter how bad you whup it you're still bound to get a little on you.'

Copyright issues aside, I think the proscription against making disparaging comments is an actionable offense on the part of David's employer, and many others as well. My former employer did it too—not in a non-compete agreement but in the termination letter I was forced to sign in order to get any severance pay. I'm not only prohibited from making disparaging comments in any public forum, I'm also prohibited from acknowledging that any severance agreement even exists. Good luck enforcing that one.

Here's my point. The ability to make disparaging comments is a necessary adjunct to the continuing mental health and well-being of an unemployed individual. This fact is, I think, well established in modern society on another front. For instance people who have just gotten out of bad relationships are allowed, expected, even encouraged, to say all manner of perjorative things about their former significant others. It's part of the healing process. It's an expression of the anger that is one of the five necessary steps in the grieving process.

Nothing more closely parallels a divorce or break-up than losing one's job. The longer you've had the job, the more effort you've invested in the relationship, the harder it is to adjust to being terminated and escorted out of the building like a trespassing derelict. This is a hurtful experience. Anyone who's been through it knows that you need all the healing tools available to weather the turmoil and get your life back on track. One of those tools is the ability to work through the natural feelings of anger and betrayal.

Taking this a little bit further, the continuing mental health and well-being of the unemployed is a necessary adjunct to their ability to get another job.

This is and has been an extremely difficult job market. Three years after the CDO- and derivative-fueled real estate bubble burst and brought our economy to the brink of collapse, unemployment is still running above 9%. There are an estimated 25 million unemployed, underemployed, and displaced workers who need jobs. Conservatively there are 6 people actively looking for work for every one available job.

A job seeker in this market needs to be on top of his or her game. There's no room for self doubt or depression. The slightest sign of weakness is going to get you culled from the herd of available applicants for any job. A job seeker needs to be positive, confident, assertive, self-possessed and optimistic. None of these is very likely while you still have unresolved issues regarding your former employer. In other words you've got to work through your anger to be sane, and you've got to be sane to have a chance of getting a job, especially in an employer's market.

Seen in this context, any effort on an employer's part to circumvent the natural process of healing can be viewed as unfair and injurious. Proscriptions against disparaging remarks, public or private, are deliberate attempts by employers to protect themselves from the consequences of their decisions at the expense of the very people they harm the most. It is adding insult to injury. It is kicking a man when he is already down. It is therefore objectionable. It needs to stop.

I propose a class action lawsuit on behalf of every unemployed person who has been forced to agree to place their mental health and future financial security in this kind of jeopardy in order to make it easier for their employer to fire them. It's only fair.