16 ms·

NLRB judge declares non-compete clause is an unfair labor practice

374 points by lalaland1125 2y ago

BeefySwain 2y ago
> 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
- deleted 2y ago
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- InvaderFizz 2y ago
  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?
  - frapaconi 2y ago
    [flagged]
    - jdiff 2y ago
      Nope, that's also not allowed.
      - frapaconi 2y ago
        How is it not allowed? Employers can’t choose who they want to hire? You’d obviously word it differently: unfortunately you’re not as good as another candidate. Better luck next time!
        immibis 2y ago
        It's not allowed because of exactly what you just said.
        ethbr1 2y ago
        How would you know? Equifax Employment Verification et al. Which begs the question of whether those are illegal too...
        saagarjha 2y ago
        Employers can’t choose who they want to hire when that decision is related to union involvement, yes. You’re not the first person to think that hiding the real reason for employment discrimination somehow makes it legal. It is not.
  - ralferoo 2y ago
    I'd imagine it'd go to court and the union would have to testify that this is the case, and also have documentary evidence to back it up.
  - p_l 2y ago
    Inventing qualifications is probably still not legal. Now, not mentioning a job in the past, or some details of it, are a different case.
  - tzs 2y ago
    No. You can lie about union organizing because an employer is not allowed to use whether or not you are a union organizer when making hiring or firing decisions. If you lie about something that the employer is allowed to use in making those decisions they can fire you.
  - Volundr 2y ago
    > So, all you have to do to completely lie on your resume and keep employed, is pretend to be union organizing? You can lie about your union involvement. You can't make up qualifications you don't have.
- kingkawn 2y ago
  As it should be
  - jpambrun 2y ago
    Care to elaborate? I can't think of any argument for this position.
    - charlesabarnes 2y ago
      Organizing a union once in your employment history would bar you from employment at a ton of companies otherwise
      - jpambrun 2y ago
        What is this about then. Obviously you can omit stuff on your resume. I take offense at adding fake experiences.
        vintermann 2y ago
        It can maybe be tough to explain what you were doing in those years you were actually working at a well-known heavily unionized business. It sucks if you have to be allowed to just make up work experience, but the root of the problem is the power imbalance between employers and employees, and well, that's what's unions are trying to address.
        stavros 2y ago
        This isn't about adding fake experiences, though, no? It's about omitting experience you've had.
        SpicyLemonZest 2y ago
        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.
- CoastalCoder 2y ago
  I'm curious what the logic is to justify lying about employment history in order to salt a union. My understanding was that you couldn't be penalized for organizing a union per se, but that didn't mean you couldn't be fired for other non-unionization-related reasons. It seems like this is going a step further: things that could get someone fired in completely union-unrelated situations, are actually protected if done in service of unionization? If so, where's the line? Can an organizer simply not show up for work and still collect a paycheck? Can they harangue the business' customers because their job requires access to the company's customer list?
  - alpinisme 2y ago
    Consider the alternative where employers can fire you for lying about your employment history. Once you’ve done some union organizing, you’d be potentially unhireable. ETA: Here's the relevant part of the judicial decision in this case: > None of these employees [who were fired for lying and used to claim precedent in this case] are an appropriate comparator for McClure, who was never accused of stealing, violating traffic laws, or other criminal conduct. And, even if Respondent could show that the other employees were fired just for lying, and not for the underlying serious misconduct, Respondent could not use that to justify firing McClure because they were all accused of lying about conduct that Respondent could lawfully consider in hiring or firing them. In contrast, McClure lied about his history of working for union employers. Because Respondent could not refuse to hire McClure because of his union background, his lie about working for Deem can’t be used to justify firing him.
  - Xylakant 2y ago
    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.
- scrapcode 2y ago
  That seems absolutely ridiculous to me... what am I missing? I can lie about my work experience in order to infiltrate a business and form a union?
  - Drakim 2y ago
    Maybe it's specifically in the context of unions and nothing else? If you lie about your work experience, it turns out you can't program Rust, then you can get fired for that. But if you lie about never having been part of a union before, and it turns out you have been part of a union before, then you can't get fired for that.
    - dartos 2y ago
      Well, if you’re hired as a rust engineer and you don’t know rust, you’d be fired for not being able to fulfill your job duties. If you get fired for being part of a union, then you’re being fired for your political position. It’s not your fault for lying on the resume, it’s the hiring teams fault for not catching it
      - seneca 2y ago
        > It’s not your fault for lying on the resume, it’s the hiring teams fault for not catching it Anyone who ever complains about how ridiculous hiring interviews in software development have gotten should be referred to this comment. This is exactly why these absurd practices exist. Because people think they're entitled to lie, and it's your fault if you don't catch them.
        oooyay 2y ago
        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.
- jpambrun 2y ago
  [flagged]
  - jdiff 2y ago
    And yet, cutting and lines coexist in the same universe.
    - jpambrun 2y ago
      On that slope nothing should considered immoral.. if one kills we can all be murderers..
      - jdiff 2y ago
        If you invent a slope you're legally allowed to put anything you want on it, just know that slopes tend to turn into curves when you back up. The existence of carnivores hasn't eliminated herbivores. For some reason evaporation hasn't boiled all our oceans away.
  - dartos 2y ago
    If that has to be punishable, then job listings with false or misleading information should be too. Also, offer letters must be legally binding at the time of being offered. Also, saying you’re hiring when you’re actually not. Lying on the resume is literally all the leverage most people have in the job hunt.
    - jpambrun 2y ago
      Everything you mentioned is immoral. Two wrong doesn't make it right. If you cheat, to compete you your lies I now have to lie. And it completely breaks the system. Also, you don't deserve more leverage over other prospective candidate. This is cheating and fraud. It requires punishment.
      - HeatrayEnjoyer 2y ago
        [flagged]
- nohuck13 2y ago
  If lying about you employment history is a protected activity, then if a pre-employment background check catches you lying about your employment history, and you say "no I am salting," that also is protection from having your offer rescinded?
  - cess11 2y ago
    In court it would be tested whether your deceit is actually relevant to the salting. Faking an entire resume to get into a place where you can't do the work isn't likely to fly, hiding your time working for a union by claiming you did first line customer support might.
- ketzu 2y ago
  I assume quite a few people think of one way of "lying" about employment history, that they have very strong feelings about how it should be handled. Like * Omitting (or denying) that you have done a certain activity (eg., union founding, working with PHP, that only-2-month job because it sucked). * Claiming (or adding) jobs or degrees that you have not worked at or earned, on your CV (e.g., claiming to have worked for microsoft for 4 years when you didn't). To me the first one seems clearly okay, but the second one not so much.
  - n2d4 2y ago
    Personally, I think "denying" is also bad, while "omitting" is fine. Instead, I think it's more reasonable to have exceptions for certain protected activities, such as salting. It's in the same category as sexual orientation for me; employers should not be allowed to ask or make decisions based on it, so if you're asked as an employee, you shouldn't have any obligation to tell the truth.
    - SoftTalker 2y ago
      I agree omitting is usually OK especially if it's not relevant. Omitting entire jobs if the experience isn't particularly relevant (particularly if it was a long time ago) can be OK. I omit that I worked at McDonald's when I was 17 in the 1990s when I am applying for a job in 2024. But if there are gaps in employment history you might be asked about it, especially if it's recent. Something like fudging employment dates along with omitting some jobs to disguise that you are a job-hopper gets into a much more grey area. I was surprised to learn that lying about employment history to hide that you are a salter was protected. I get that salting might be protected, but did not expect that lying on an application would be.
      - cool_dude85 2y ago
        >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.
- deleted 2y ago
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- Quanttek 2y ago
  The idea is pretty easy: If an employer could simply ask you about past union activity (or activity indicating it, such as certain training) and then fire you for lying about your employment history when you omit it, then the protection for unions is effectively neutralized. Unlike what other commentators imply, this judgment doesn't legitimize just inventing degrees or qualifications. It's closer to omitting that 2-month job that didn't work out
  - ndriscoll 2y ago
    > McClure applied as a covert organizer, or salt. He gave Respondent a resume that falsely claimed that he worked at a non-union company called Deem from 2018 to the time of his application... McClure testified that he believed claiming to work for a non-union employer would increase his chances of being hired, as people in the HVAC industry would generally recognize WMI and Habel as union shops and Deem as non-union.
- AndrewKemendo 2y ago
  We have had decades of worker suppression that lead people to think that it’s illegal to collectivize against your employer and it’s just not the case
  - hn_throwaway_99 2y ago
    I don't think that's what people were surprised about. Just speaking for myself, I was originally surprised by the statement "lying about your employment history to salt is also protected activity". After all, it's seems to make perfect sense that I can be fired for lying on my resume. The bit that I didn't understand, and that some of the comments here cleared up, is that only lying about the employment pieces that specifically relate to past work as a union organizer are the things that are protected activity.
    - Izkata 2y ago
      Yes, salting in general is adding something. Sounds like inventing a job you didn't actually do is protected? Doesn't make sense. Missed that this is a jargon word that has a special unrelated meaning here.
- jmyeet 2y ago
  Here's an exercise for you. Take almost any court case that makes it to the Supreme Court or Federal government action, regardless of the court's makeup, or what party controls the White house or Congress, and ask yourself this question: What is the pro-business or pro-government outcome of this case or legislation? Then see how the court ruled or the executive and legislature acted. You will find the majority of the time that the pro-business or pro-government (particularly pro-police) outcome matches what actually happens.
- singron 2y ago
  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.
hsdaanxxdh 2y ago
[flagged]
dataflow 2y ago
How much authority/jurisdiction does this judge/ruling have? It seems like the kind of thing that might easily get appealed and lost.
- bitwize 2y ago
  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.
  - deleted 2y ago
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  - deleted 2y ago
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  - lolinder 2y ago
    > the administrative state. The overturn of the bump stock ban is just the beginning It's not even sort of the beginning. The conservative stance on the role of the Supreme Court has been pretty clear for a long time and this court has been ruling that way for a few years now. Their theory is that Congress makes the laws, the Executive branch enforces them, and the Judicial branch interprets. The precedent that they've overturned has consistently been in line with this logic: they've said over and over again that if America wants a law then Congress should create it, rather than relying on executive rulemaking that gets overturned every time an administration changes or on unelected judges legislating from the bench. Whether or not you agree with them on specific issues, I think we can all agree that the current status quo where worker rights take dramatic swings every time a new party takes control of the presidency is a ridiculous situation that needs to be fixed. I want a nation of laws, not a nation of administrative rules that have a 4-year shelf life.
    - kbolino 2y ago
steveBK123 2y ago
There's been moves by the FTC to ban non-competes as well. I work in financial services so am often covered by these clauses. Firstly, it seems insane that unpaid non-competes are legal at all, to start with. Also, seeing them applied to very junior level and even hourly paid roles is overly onerous. While my industry pays your base salary during your "garden leave" even this can be misleading in more senior roles where 50% or more of your compensation is bonus, plus some firms cut your healthcare coverage on resignation as well. Some companies have also extended the terms as long as 18 months or longer. Further, I have been under non-solicitations with terms as long as 5 years which is frankly insane. So all that is to say the free market is not exactly working here, and seeing some legal guardrails put in place would be good - pay required, terms limited, benefits defined, etc.
- jfengel 2y ago
  TIL "garden leave", a period of time when you are mandated to be out of work. Thanks.
  - steveBK123 2y ago
    It's pretty good for say, 3-6 months. Long enough to reset, not worry too much about health coverage, and if timed right.. not miss out on a bonus cycle. It's also short enough that you can interview and get a job offer from a company willing to wait for you. Often you can negotiate a signing bonus at the new shop to make up for compensation you may lose due to deferral or bonus cycle. The firms trying to force 18 month terms are also some of the highest turnover shops. Arguably you'd need to demand a 50-75% bump to take the role since on the way out the door you are going to miss out on 1-2 bonus cycles. The term is so long you likely need to quit before finding a new job too, and then kick off interviewing in the last 6 months.
  - pkilgore 2y ago
    Importantly compared to almost all non-competes: Garden Leave implies you are being paid to not work.
    - 2y ago
wdreynolds1 2y ago
There is nothing in this ruling that is new as it relates to non-competes or non-solicitation. Overly broad non-compete’s and non-solicitation clauses have always been unenforceable. They must be specific and unambiguous.
- downrightmike 2y ago
  I had an employer only offer severance if I signed a new non compete for FIVE years and to get around the overly broad language they inserted clauses on every single thing that stated that there was no way around the non compete even though the state would find it illegal. My state has precedent that if the non compete doesn't allow a person to earn a living, they throw it out and if one clause does that, the whole thing is in valid. So the employer wrote their new non compete to completely try to circumvent it. They also paid shit, so severance wasn't worth it.
bushbaba 2y ago
While great, it's a huge blow to California who historically benefited from the innovations of non-competes being non-enforceable.
- bbarn 2y ago
  Why exactly?
- ghaff 2y ago
  I'm very opposed to non-competes except in specific scenarios like selling a business (and non-solicitation agreements often make sense). However, I'm also very skeptical of the argument that CA's success in certain industries is remotely the result of unenforceable non-competes. There often seems to be an assumption that non-competes are the norm everywhere else and, while they certainly exist (and some firms/industries are notorious for enforcing them) that just isn't the case anything like universally in my experience.
- phyzome 2y ago
  Or it's exactly the opposite, depending on how mobile you think companies are.
gigatexal 2y ago
Nice. Here’s hoping the extra freedom causes wages to rise and employers work to keep employees with benefits instead of handcuffs.
jmyeet 2y ago
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 https://en.wikipedia.org/wiki/Enclosure [2]: https://en.wikipedia.org/wiki/Rent-seeking https://en.wikipedia.org/wiki/Rent-seeking [3]: https://www.hklaw.com/en/insights/publications/2024/02/florida-legislature-proposes-ban-on-physician-noncompete-agreements https://www.hklaw.com/en/insights/publications/2024/02/flori... [4]: https://stateline.org/2024/03/29/vets-fret-as-private-equity-snaps-up-clinics-pet-care-companies/ https://stateline.org/2024/03/29/vets-fret-as-private-equity...
giantg2 2y ago
That non-solicitation clause is interesting. My company forbids managers from providing references for employees. I wonder if that could also be considered an unfair labor practice since it negatively affect your ability to get a different job. Honestly, I'm starting to see that my company is doing a lot of shady employment things. I guess most companies do.
- deleted 2y ago
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- BenFranklin100 2y ago
  The reason this is done is that litigious ex-employees might try and sue for defamation. Even if the lawsuit is scurrilous, it will cost a company $20-30K to defend itself, so many companies have decided it’s not worth the risk.
  - giantg2 2y ago
    I can see why HR won't provide performance references. But I'm talking about if I'm a star employee and want to leave, I ask my boss if they'll write me a recommendation letter or if I can list them as a positive reference on my apps, they aren't allowed to by the company and may even get fired for it.
    - BenFranklin100 2y ago
      That’s what I am talking about too. Companies don’t allow any sort of references of former employees, positive or otherwise, and from any level of management. It’s too hard to police and much simpler to just not allow the practice. It’s frustrating from the employee and prospectus employer perspective, but I see why companies do this. Bad apples can be very time-consuming and expensive to deal with.
      - giantg2 2y ago
        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.
simonbarker87 2y ago
Of course it is. Non-competes are unenforceable in the UK as you can’t stop someone earning a living and if their skill or knowledge is that specific or valuable that they may not be able to get a job anywhere not covered in the non-compete. Want someone to not work for a competitor until their secret knowledge is out of date? Pay them gardening leave.
- quietbritishjim 2y ago
  The UK government was due to introduce legislation ("when parliamentary time allows", which apparently it didn't) to limit non-complete clauses in employment contracts to a maximum of 3 months. That seems like implicit recognition that non-complete clauses longer than 3 months are currently valid.
  - simonbarker87 2y ago
    Can't speak to that explicitly but the advice I was given by 2 solicitors on the topic was "they're not enforceable and won't stand up in court, they can't stop you earning a living with your skills"
  - KennyBlanken 2y ago
    No, it implies that's what legislators negotiated between different factions, or between legislators and lobbyists, or were outright bribed by lobbyists to go with. Ie, they wanted 1 month, but lobbyists wanted 6 months, legislators pushed back, and everyone compromised at 3.
mannyv 2y ago
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.
- deleted 2y ago
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red_admiral 2y ago
This sounds reasonable. If you train as a plumber, work for ACME Plumbing Inc. and then leave, being told you can't work anywhere else in your trade for 24 months means you should do what exactly - become an uber driver for a couple of years?
paulus_magnus2 2y ago
No need to ban it. Just automaticly award full salary for 2x the noncompete period they put in your contract, payable in full a week after contract termination.
- callalex 2y ago
  Suddenly your salary is $1/yr and your bonus is $1M/yr. (This really happens in the USA financial sector.)
  - AgentOrange1234 2y ago
    Employees won’t tolerate that due to not being able to get mortgages? Our megacorp recently upped base salaries due to this.
    - Dr_Birdbrain 2y ago
      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.
    - tekno45 2y ago
      Can't you count bonuses that are consistent for two years?
blackeyeblitzar 2y ago
I agree that non competes are unfair but also think the NLRB has too much power and is effectively legislating.
nabla9 2y ago
If non-compete is must, you can always make garden leave contract. Employee must stay away from work during the notice period, while still remaining on the payroll. 6 or 12 month garden leave is common in financial sector.
WalterBright 2y ago
I'm curious if the NLRB has ever ruled in favor of business.
- ok_dad 2y ago
  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-decisions https://www.nlrb.gov/cases-decisions/decisions/notable-board...
  - WalterBright 2y ago
    Thanks for the link. But I'm not going to spend all day reading those decisions (the language is so legalese it's hard to parse what they're talking about). I'll just say that every time the NLRB is in the news, I've never read of a case where they ruled for the business. If you want to point to a decision in particular, I'll take a look at it. > you made a stupid comment meant to insinuate something sinister It's a fair question.
    - ok_dad 2y ago
      Not fair at all, insinuating something then doing no work to verify is lazy. You’re smarter than that! Put in the effort necessary to research your positions.
  - Kiboneu 2y ago
    You could read the comment guidelines. Instead you made an unnecessarily insulting comment with no real substance. Since you clearly have not bothered to read them, the guidelines are at the bottom of the site, or maybe try googling it.
    - ok_dad 2y ago
      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.
ein0p 2y ago
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.
Marietta040 2y ago
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Marietta040 2y ago
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374 points by lalaland1125 2y ago

> 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

deleted 2y ago
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InvaderFizz 2y ago
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?
- frapaconi 2y ago
  [flagged]
  - jdiff 2y ago
    Nope, that's also not allowed.
    - frapaconi 2y ago
      How is it not allowed? Employers can’t choose who they want to hire? You’d obviously word it differently: unfortunately you’re not as good as another candidate. Better luck next time!
      - immibis 2y ago
        It's not allowed because of exactly what you just said.
      - ethbr1 2y ago
        How would you know? Equifax Employment Verification et al. Which begs the question of whether those are illegal too...
      - saagarjha 2y ago
        Employers can’t choose who they want to hire when that decision is related to union involvement, yes. You’re not the first person to think that hiding the real reason for employment discrimination somehow makes it legal. It is not.
- ralferoo 2y ago
  I'd imagine it'd go to court and the union would have to testify that this is the case, and also have documentary evidence to back it up.
- p_l 2y ago
  Inventing qualifications is probably still not legal. Now, not mentioning a job in the past, or some details of it, are a different case.
- tzs 2y ago
  No. You can lie about union organizing because an employer is not allowed to use whether or not you are a union organizer when making hiring or firing decisions. If you lie about something that the employer is allowed to use in making those decisions they can fire you.
- Volundr 2y ago
  > So, all you have to do to completely lie on your resume and keep employed, is pretend to be union organizing? You can lie about your union involvement. You can't make up qualifications you don't have.
kingkawn 2y ago
As it should be
- jpambrun 2y ago
  Care to elaborate? I can't think of any argument for this position.
  - charlesabarnes 2y ago
    Organizing a union once in your employment history would bar you from employment at a ton of companies otherwise
    - jpambrun 2y ago
      What is this about then. Obviously you can omit stuff on your resume. I take offense at adding fake experiences.
      - vintermann 2y ago
        It can maybe be tough to explain what you were doing in those years you were actually working at a well-known heavily unionized business. It sucks if you have to be allowed to just make up work experience, but the root of the problem is the power imbalance between employers and employees, and well, that's what's unions are trying to address.
      - stavros 2y ago
        This isn't about adding fake experiences, though, no? It's about omitting experience you've had.
        SpicyLemonZest 2y ago
        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.
CoastalCoder 2y ago
I'm curious what the logic is to justify lying about employment history in order to salt a union. My understanding was that you couldn't be penalized for organizing a union per se, but that didn't mean you couldn't be fired for other non-unionization-related reasons. It seems like this is going a step further: things that could get someone fired in completely union-unrelated situations, are actually protected if done in service of unionization? If so, where's the line? Can an organizer simply not show up for work and still collect a paycheck? Can they harangue the business' customers because their job requires access to the company's customer list?
- alpinisme 2y ago
  Consider the alternative where employers can fire you for lying about your employment history. Once you’ve done some union organizing, you’d be potentially unhireable. ETA: Here's the relevant part of the judicial decision in this case: > None of these employees [who were fired for lying and used to claim precedent in this case] are an appropriate comparator for McClure, who was never accused of stealing, violating traffic laws, or other criminal conduct. And, even if Respondent could show that the other employees were fired just for lying, and not for the underlying serious misconduct, Respondent could not use that to justify firing McClure because they were all accused of lying about conduct that Respondent could lawfully consider in hiring or firing them. In contrast, McClure lied about his history of working for union employers. Because Respondent could not refuse to hire McClure because of his union background, his lie about working for Deem can’t be used to justify firing him.
- Xylakant 2y ago
  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.
scrapcode 2y ago
That seems absolutely ridiculous to me... what am I missing? I can lie about my work experience in order to infiltrate a business and form a union?
- Drakim 2y ago
  Maybe it's specifically in the context of unions and nothing else? If you lie about your work experience, it turns out you can't program Rust, then you can get fired for that. But if you lie about never having been part of a union before, and it turns out you have been part of a union before, then you can't get fired for that.
  - dartos 2y ago
    Well, if you’re hired as a rust engineer and you don’t know rust, you’d be fired for not being able to fulfill your job duties. If you get fired for being part of a union, then you’re being fired for your political position. It’s not your fault for lying on the resume, it’s the hiring teams fault for not catching it
    - seneca 2y ago
      > It’s not your fault for lying on the resume, it’s the hiring teams fault for not catching it Anyone who ever complains about how ridiculous hiring interviews in software development have gotten should be referred to this comment. This is exactly why these absurd practices exist. Because people think they're entitled to lie, and it's your fault if you don't catch them.
      - oooyay 2y ago
        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.
jpambrun 2y ago
[flagged]
- jdiff 2y ago
  And yet, cutting and lines coexist in the same universe.
  - jpambrun 2y ago
    On that slope nothing should considered immoral.. if one kills we can all be murderers..
    - jdiff 2y ago
      If you invent a slope you're legally allowed to put anything you want on it, just know that slopes tend to turn into curves when you back up. The existence of carnivores hasn't eliminated herbivores. For some reason evaporation hasn't boiled all our oceans away.
- dartos 2y ago
  If that has to be punishable, then job listings with false or misleading information should be too. Also, offer letters must be legally binding at the time of being offered. Also, saying you’re hiring when you’re actually not. Lying on the resume is literally all the leverage most people have in the job hunt.
  - jpambrun 2y ago
    Everything you mentioned is immoral. Two wrong doesn't make it right. If you cheat, to compete you your lies I now have to lie. And it completely breaks the system. Also, you don't deserve more leverage over other prospective candidate. This is cheating and fraud. It requires punishment.
    - HeatrayEnjoyer 2y ago
      [flagged]
nohuck13 2y ago
If lying about you employment history is a protected activity, then if a pre-employment background check catches you lying about your employment history, and you say "no I am salting," that also is protection from having your offer rescinded?
- cess11 2y ago
  In court it would be tested whether your deceit is actually relevant to the salting. Faking an entire resume to get into a place where you can't do the work isn't likely to fly, hiding your time working for a union by claiming you did first line customer support might.
ketzu 2y ago
I assume quite a few people think of one way of "lying" about employment history, that they have very strong feelings about how it should be handled. Like * Omitting (or denying) that you have done a certain activity (eg., union founding, working with PHP, that only-2-month job because it sucked). * Claiming (or adding) jobs or degrees that you have not worked at or earned, on your CV (e.g., claiming to have worked for microsoft for 4 years when you didn't). To me the first one seems clearly okay, but the second one not so much.
- n2d4 2y ago
  Personally, I think "denying" is also bad, while "omitting" is fine. Instead, I think it's more reasonable to have exceptions for certain protected activities, such as salting. It's in the same category as sexual orientation for me; employers should not be allowed to ask or make decisions based on it, so if you're asked as an employee, you shouldn't have any obligation to tell the truth.
  - SoftTalker 2y ago
    I agree omitting is usually OK especially if it's not relevant. Omitting entire jobs if the experience isn't particularly relevant (particularly if it was a long time ago) can be OK. I omit that I worked at McDonald's when I was 17 in the 1990s when I am applying for a job in 2024. But if there are gaps in employment history you might be asked about it, especially if it's recent. Something like fudging employment dates along with omitting some jobs to disguise that you are a job-hopper gets into a much more grey area. I was surprised to learn that lying about employment history to hide that you are a salter was protected. I get that salting might be protected, but did not expect that lying on an application would be.
    - cool_dude85 2y ago
      >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.
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Quanttek 2y ago
The idea is pretty easy: If an employer could simply ask you about past union activity (or activity indicating it, such as certain training) and then fire you for lying about your employment history when you omit it, then the protection for unions is effectively neutralized. Unlike what other commentators imply, this judgment doesn't legitimize just inventing degrees or qualifications. It's closer to omitting that 2-month job that didn't work out
- ndriscoll 2y ago
  > McClure applied as a covert organizer, or salt. He gave Respondent a resume that falsely claimed that he worked at a non-union company called Deem from 2018 to the time of his application... McClure testified that he believed claiming to work for a non-union employer would increase his chances of being hired, as people in the HVAC industry would generally recognize WMI and Habel as union shops and Deem as non-union.
AndrewKemendo 2y ago
We have had decades of worker suppression that lead people to think that it’s illegal to collectivize against your employer and it’s just not the case
- hn_throwaway_99 2y ago
  I don't think that's what people were surprised about. Just speaking for myself, I was originally surprised by the statement "lying about your employment history to salt is also protected activity". After all, it's seems to make perfect sense that I can be fired for lying on my resume. The bit that I didn't understand, and that some of the comments here cleared up, is that only lying about the employment pieces that specifically relate to past work as a union organizer are the things that are protected activity.
  - Izkata 2y ago
    Yes, salting in general is adding something. Sounds like inventing a job you didn't actually do is protected? Doesn't make sense. Missed that this is a jargon word that has a special unrelated meaning here.
jmyeet 2y ago
Here's an exercise for you. Take almost any court case that makes it to the Supreme Court or Federal government action, regardless of the court's makeup, or what party controls the White house or Congress, and ask yourself this question: What is the pro-business or pro-government outcome of this case or legislation? Then see how the court ruled or the executive and legislature acted. You will find the majority of the time that the pro-business or pro-government (particularly pro-police) outcome matches what actually happens.
singron 2y ago
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.

hsdaanxxdh 2y ago

[flagged]

dataflow 2y ago

How much authority/jurisdiction does this judge/ruling have? It seems like the kind of thing that might easily get appealed and lost.

bitwize 2y ago
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.
- deleted 2y ago
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- deleted 2y ago
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- lolinder 2y ago
  > the administrative state. The overturn of the bump stock ban is just the beginning It's not even sort of the beginning. The conservative stance on the role of the Supreme Court has been pretty clear for a long time and this court has been ruling that way for a few years now. Their theory is that Congress makes the laws, the Executive branch enforces them, and the Judicial branch interprets. The precedent that they've overturned has consistently been in line with this logic: they've said over and over again that if America wants a law then Congress should create it, rather than relying on executive rulemaking that gets overturned every time an administration changes or on unelected judges legislating from the bench. Whether or not you agree with them on specific issues, I think we can all agree that the current status quo where worker rights take dramatic swings every time a new party takes control of the presidency is a ridiculous situation that needs to be fixed. I want a nation of laws, not a nation of administrative rules that have a 4-year shelf life.
  - kbolino 2y ago

steveBK123 2y ago

There's been moves by the FTC to ban non-competes as well. I work in financial services so am often covered by these clauses. Firstly, it seems insane that unpaid non-competes are legal at all, to start with. Also, seeing them applied to very junior level and even hourly paid roles is overly onerous. While my industry pays your base salary during your "garden leave" even this can be misleading in more senior roles where 50% or more of your compensation is bonus, plus some firms cut your healthcare coverage on resignation as well. Some companies have also extended the terms as long as 18 months or longer. Further, I have been under non-solicitations with terms as long as 5 years which is frankly insane. So all that is to say the free market is not exactly working here, and seeing some legal guardrails put in place would be good - pay required, terms limited, benefits defined, etc.

jfengel 2y ago
TIL "garden leave", a period of time when you are mandated to be out of work. Thanks.
- steveBK123 2y ago
  It's pretty good for say, 3-6 months. Long enough to reset, not worry too much about health coverage, and if timed right.. not miss out on a bonus cycle. It's also short enough that you can interview and get a job offer from a company willing to wait for you. Often you can negotiate a signing bonus at the new shop to make up for compensation you may lose due to deferral or bonus cycle. The firms trying to force 18 month terms are also some of the highest turnover shops. Arguably you'd need to demand a 50-75% bump to take the role since on the way out the door you are going to miss out on 1-2 bonus cycles. The term is so long you likely need to quit before finding a new job too, and then kick off interviewing in the last 6 months.
- pkilgore 2y ago
  Importantly compared to almost all non-competes: Garden Leave implies you are being paid to not work.
  - 2y ago

wdreynolds1 2y ago

There is nothing in this ruling that is new as it relates to non-competes or non-solicitation. Overly broad non-compete’s and non-solicitation clauses have always been unenforceable. They must be specific and unambiguous.

downrightmike 2y ago
I had an employer only offer severance if I signed a new non compete for FIVE years and to get around the overly broad language they inserted clauses on every single thing that stated that there was no way around the non compete even though the state would find it illegal. My state has precedent that if the non compete doesn't allow a person to earn a living, they throw it out and if one clause does that, the whole thing is in valid. So the employer wrote their new non compete to completely try to circumvent it. They also paid shit, so severance wasn't worth it.

bushbaba 2y ago

While great, it's a huge blow to California who historically benefited from the innovations of non-competes being non-enforceable.

bbarn 2y ago
Why exactly?
ghaff 2y ago
I'm very opposed to non-competes except in specific scenarios like selling a business (and non-solicitation agreements often make sense). However, I'm also very skeptical of the argument that CA's success in certain industries is remotely the result of unenforceable non-competes. There often seems to be an assumption that non-competes are the norm everywhere else and, while they certainly exist (and some firms/industries are notorious for enforcing them) that just isn't the case anything like universally in my experience.
phyzome 2y ago
Or it's exactly the opposite, depending on how mobile you think companies are.

gigatexal 2y ago

Nice. Here’s hoping the extra freedom causes wages to rise and employers work to keep employees with benefits instead of handcuffs.

jmyeet 2y ago

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 https://en.wikipedia.org/wiki/Enclosure [2]: https://en.wikipedia.org/wiki/Rent-seeking https://en.wikipedia.org/wiki/Rent-seeking [3]: https://www.hklaw.com/en/insights/publications/2024/02/florida-legislature-proposes-ban-on-physician-noncompete-agreements https://www.hklaw.com/en/insights/publications/2024/02/flori... [4]: https://stateline.org/2024/03/29/vets-fret-as-private-equity-snaps-up-clinics-pet-care-companies/ https://stateline.org/2024/03/29/vets-fret-as-private-equity...

giantg2 2y ago

That non-solicitation clause is interesting. My company forbids managers from providing references for employees. I wonder if that could also be considered an unfair labor practice since it negatively affect your ability to get a different job. Honestly, I'm starting to see that my company is doing a lot of shady employment things. I guess most companies do.

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BenFranklin100 2y ago
The reason this is done is that litigious ex-employees might try and sue for defamation. Even if the lawsuit is scurrilous, it will cost a company $20-30K to defend itself, so many companies have decided it’s not worth the risk.
- giantg2 2y ago
  I can see why HR won't provide performance references. But I'm talking about if I'm a star employee and want to leave, I ask my boss if they'll write me a recommendation letter or if I can list them as a positive reference on my apps, they aren't allowed to by the company and may even get fired for it.
  - BenFranklin100 2y ago
    That’s what I am talking about too. Companies don’t allow any sort of references of former employees, positive or otherwise, and from any level of management. It’s too hard to police and much simpler to just not allow the practice. It’s frustrating from the employee and prospectus employer perspective, but I see why companies do this. Bad apples can be very time-consuming and expensive to deal with.
    - giantg2 2y ago
      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.

simonbarker87 2y ago

Of course it is. Non-competes are unenforceable in the UK as you can’t stop someone earning a living and if their skill or knowledge is that specific or valuable that they may not be able to get a job anywhere not covered in the non-compete. Want someone to not work for a competitor until their secret knowledge is out of date? Pay them gardening leave.

quietbritishjim 2y ago
The UK government was due to introduce legislation ("when parliamentary time allows", which apparently it didn't) to limit non-complete clauses in employment contracts to a maximum of 3 months. That seems like implicit recognition that non-complete clauses longer than 3 months are currently valid.
- simonbarker87 2y ago
  Can't speak to that explicitly but the advice I was given by 2 solicitors on the topic was "they're not enforceable and won't stand up in court, they can't stop you earning a living with your skills"
- KennyBlanken 2y ago
  No, it implies that's what legislators negotiated between different factions, or between legislators and lobbyists, or were outright bribed by lobbyists to go with. Ie, they wanted 1 month, but lobbyists wanted 6 months, legislators pushed back, and everyone compromised at 3.

mannyv 2y ago

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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red_admiral 2y ago

This sounds reasonable. If you train as a plumber, work for ACME Plumbing Inc. and then leave, being told you can't work anywhere else in your trade for 24 months means you should do what exactly - become an uber driver for a couple of years?

paulus_magnus2 2y ago

No need to ban it. Just automaticly award full salary for 2x the noncompete period they put in your contract, payable in full a week after contract termination.

callalex 2y ago
Suddenly your salary is $1/yr and your bonus is $1M/yr. (This really happens in the USA financial sector.)
- AgentOrange1234 2y ago
  Employees won’t tolerate that due to not being able to get mortgages? Our megacorp recently upped base salaries due to this.
  - Dr_Birdbrain 2y ago
    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.
  - tekno45 2y ago
    Can't you count bonuses that are consistent for two years?

blackeyeblitzar 2y ago

I agree that non competes are unfair but also think the NLRB has too much power and is effectively legislating.

nabla9 2y ago

If non-compete is must, you can always make garden leave contract. Employee must stay away from work during the notice period, while still remaining on the payroll. 6 or 12 month garden leave is common in financial sector.

WalterBright 2y ago

I'm curious if the NLRB has ever ruled in favor of business.

ok_dad 2y ago
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-decisions https://www.nlrb.gov/cases-decisions/decisions/notable-board...
- WalterBright 2y ago
  Thanks for the link. But I'm not going to spend all day reading those decisions (the language is so legalese it's hard to parse what they're talking about). I'll just say that every time the NLRB is in the news, I've never read of a case where they ruled for the business. If you want to point to a decision in particular, I'll take a look at it. > you made a stupid comment meant to insinuate something sinister It's a fair question.
  - ok_dad 2y ago
    Not fair at all, insinuating something then doing no work to verify is lazy. You’re smarter than that! Put in the effort necessary to research your positions.
- Kiboneu 2y ago
  You could read the comment guidelines. Instead you made an unnecessarily insulting comment with no real substance. Since you clearly have not bothered to read them, the guidelines are at the bottom of the site, or maybe try googling it.
  - ok_dad 2y ago
    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.

ein0p 2y ago

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.

Marietta040 2y ago

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Marietta040 2y ago

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