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.

Day 143 - The Courage for Hard Choices

          After a week of organizing, packing and pricing we had our garage sale yesterday. It was quite a success and actually a lot of fun, as such things go. All the neighbors took it as an occasion to stop by and commiserate about our leaving. They also bought up a lot of our stuff, although I suspect that at least some of their purchases were motivated by charity rather than bargain seeking.

          I sold some notable things that I have been carrying around with me for years, and the fact that they are irretrievably gone makes me nostalgic for them. One was a saber and scabbard that I'd had since my days as a cadet at a high school military academy. I always felt that it was something I had earned since it was part of my uniform paraphernalia as an officer in the corps of cadets. It was also an unusual thing to posses this day and age, and one that could usually be counted upon to initiate an interesting conversation whenever I got it out of the closet for company.

          I also sold a dark brown leather trench coat. I bought it in my late twenties, so I’d had it for over 30 years. It was too small for me for at least twenty of those years, but like a lot of people spreading inexorably through middle age I clung to the notion that one day I would get my disciplinarian on and lose weight. Yesterday I finally forced myself to give up that notion and embrace reality. I sold it to my neighbor, Rich. I made him put it on, and told him how good he looked in it. He did in fact look fabulous. It is a stunning garment. The women of the neighborhood helped me make this pitch by oohing and aahing appreciatively. It wasn’t a stretch for them. Rich looked that good in my trench coat. He gave me $35 for it. It cost me $425 all those years ago. I’ve worn it maybe 15 times in my life. I should take a $390 lesson from this. Like the old saw says, when life hands you lemons, you've got to make some lemonade.  

* * * * *

          The end came pretty fast for me at Albatross after the consultants finished up all their analysis and scheming and got down to business. They led us through a prepackaged bankruptcy. That means the bankruptcy plan was approved by our creditors before it was presented to the bankruptcy court. This cuts out the interminable back and forth that serves mainly to enrich the lawyers. The lawyers got plenty enriched anyway, but we were in and out of the federal bankruptcy court in 38 hours—a record at that time for a ‘pre-pac’, and one that for all I know still stands.

          A major part of the plan called for eliminating an additional $15 million of overhead. That imposing number included my position, although I didn’t know it at the time. I suspected it when Jed Boome stopped talking to me whenever we passed each other in the hallways. This sudden curtailment of pleasantries is an excellent indicator that your employment status is about to change for the worse. You can’t really call it a leading indicator because what it indicates has already happened. You just don’t know it yet. In my case it took about three weeks, but thanks to Jed I knew it was coming.

          It’s sad when you think about it. Executives of troubled companies like to think that they have the courage to make hard decisions about individuals and groups of employees for the greater good of the company as a whole. What they often don’t have the courage for is looking you in the eye or taking any kind of responsibility on a personal level for the hardships they create. Jed’s inability to even say hello to me in a hallway is an excellent example of this. Jed’s bone-headed decision regarding the option price optimization cost the company about $35 million in lost revenues. You could argue, and I will, that were it not for that costly error in judgment we would not have had to reorganize, we would not have had to carve out $15 million in overhead, and several dozen hardworking and productive employees, me included, would still be working there. This explains why Jed couldn’t look me in the eye, but it doesn’t do anything to explain his self-congratulatory posturing about the hard decisions.

          When Rod came into my office and asked me if I had time to go down to HR with him I knew the time had come. I said as much to Rod as he stood in my doorway looking uncomfortable.

          “So today’s the day, is it?” I said, mustering as much bravado as I could manage.

          Rod just nodded. I’m not sure in retrospect that he even knew what I was talking about. He was busy trying to make it seem like a routine meeting to discuss personnel issues. Maybe he did know I was onto him, but he didn’t have the acting chops to improvise from that point. He tried to continue with the charade.

          He dropped me at the door of the HR director’s office and waited outside. Inside it was quick and perfunctory. I got 3 months severance, but that was the extent of any largesse from the company I’d been giving 14 hours a day to for as long as I could remember. Back outside Rod was waiting to escort me back up to my office to get my coat and car keys. They didn’t want me taking my personal effects home just then. They wanted me to come back over the week-end to get them, when no one else would be there to mark my passing. I guess they thought it would be disruptive otherwise. Turns out they were right.

          Ringcomme was waiting outside Rod’s office to talk to him when we got back upstairs. Rod couldn’t abandon me to talk to Ringcomme, but he really couldn’t tell Ringcomme what was going on either. Ringcomme, proud owner of an overdeveloped sense of entitlement, did not understand Rod’s refusal to see him right then. He got a little insistent. Rod’s discomfort grew exponentially. I have an underdeveloped sense of entitlement so I decided to help him out.

          “He can’t talk to you, Jimmy,” I said. “He’s in the middle of firing me. Right now he has to walk me out the door to make sure I don’t cause a scene or steal something.”

          Ringcomme was crestfallen, not because I was leaving, but because he couldn’t get his problem resolved right away. He didn’t know what to do or say. He just stood there looking stupid.

          I got my coat and keys from my office. I noticed that my laptop was gone. It had been open and running on the top of my desk. The power cord was still there, still plugged in. I knew that someone from IT had been dispatched to get the laptop while I was downstairs getting the axe. Later I found out it had been the department manager, my friend with the Christmas ties. It’s usually one of the tech support guys when they do something like this. I guess they were afraid that a tech guy would have spilled the beans. I thought they seemed inordinately determined to keep my firing quiet. As it turns out Rod wanted to personally control the likely fallout. He thought there would be an impact on morale, and he was right.

          My wife was shocked and dismayed to see me home early. She knew what it meant. I’d been laying the groundwork for weeks.

          The phone started to light up almost as soon as I got home. Word had spread once Rod got me out of the building. Some folks had seen it happening. Ringcomme probably felt no need to keep it a secret. Some had been in earshot when I told Rincomme why Rod couldn’t give him the time he was so desperate to get. Everyone wanted to know how I was taking it. There were a lot of crying women involved. I found I was giving more comfort that I was getting. The calls continued the rest of the day, except for one brief period that probably coincided with Rod's big meeting.

          He called the whole department together to announce that he had let me go. I don’t know what all he had planned to say, but apparently he didn’t get very far. Eddie Sharpe asked him in front of everybody if he had lost his mind. Rod tried to make the case that everyone needed to make a sacrifice to accommodate the new reorganization plan, it was a difficult choice to make, everyone was going to have to pull together and get past their personal feelings—stuff of that ilk. I don’t think anybody was buying it. I know I wouldn’t have. For one thing, I don’t think it took him three seconds to decide who to give up to the cost cutting consultants. I think he knew all along he was going to get rid of me at the first opportunity. All the rest of it was just about getting people to go back to work. What they did, most of them, when they got back to their desks, was call me.

          I met Eddie and Dennis for drinks that evening. They were livid. Eddie had already called a recruiter and put his résumé in play. Dennis had been getting calls from an old colleague who had a position he wanted Dennis to take. Dennis had been putting the guy off because he actually liked the setup at Albatross. What he liked was me. He called the guy after Rod’s meeting and told him he was ready to reconsider.

Day 32 - Closing a Chapter

          Gary and I finished up the closing early today. I showed Gary where all the reports reside on the computer and how to access and update them. We even reconciled the borrowing base and submitted that to corporate three days early. I left at lunch time, happy to be shed of the place at last.

I’m anxious to get on with my life now. The last few weeks, winding down an already closed chapter, have been like wasted time to me. If I hadn’t been sick and drugged most of the time it would have been even more frustrating than it was. I shook Bill’s hand on my way out. It seemed like a mature thing to do at the time, but I didn’t feel any more mature for having done it. I wonder how Bill felt about it. We’ve actually been through quite a bit together in the relatively short time we’ve been associated. I thought we had a pretty good rapport right up until the end, when Bill decided to reveal his truer nature. I wonder if he really will miss me, or, in his alternative universe, if he’s told Threasher that he’d like to snatch me out of my car at a stop light and beat the crap out of me.

          My physical condition has improved modestly throughout the week. My fever is all but gone, and the pain is bearable without medication. I’ve got another lithotripsy next week—hopefully the last one. By the end of the month I should be feeling great and ready to tackle the job hunt with the energy it requires. At that point I’ll only have three months of severance left. It seems like plenty, but the economy is tanking all around me. Every day the news is full of economic woes of mind-boggling proportion. That can’t bode well for my prospects.

Day 14 - Exit Strategies

          I told Bill that I am going to take Thursday and Friday off this week—Thursday because I have an interview, and Friday because I am having some of my kidney stones blown up. He did a little double take over the interview news. Suddenly it’s feasible that I will get a job before they get my replacement hired. Then I will be unavailable for the all-important transition, and the new guy will have a terrible time settling himself into our recalcitrant and user-antagonizing systems.

The interview is going to be over the phone, so things with the aerospace firm haven not actually progressed to the point where I’m excited yet. I wasn’t about to tell Bill that though. Better to let him stew a little.

          Bill stopped by my office in the afternoon with a new draft of the severance agreement. I guess the prospect of my taking another job this soon got them rattled enough to speed up the severance deal anyway. Bill tried to get me to sign it while he was waiting. I told him I’d like to read it first. I asked him if I still had seven days from the new date in which to sign. I knew that I did, but I also knew he wasn’t going to relish hearing the question while he was busy trying to get me to sign it blind. I wondered secretly if, because I was deliberately trying to make him uncomfortable with his choices, I might also be a jerk. I decided that I was not. Bill said that they have made an offer to another candidate for my job, and they expect an answer today or tomorrow. I asked when the guy was likely to start. Bill didn’t know.

          “Soon, I hope,” he said, shaking his head. “Soon.