Speaker 1: 0:20

Hey, it's Mark and welcome back to another exciting episode, and today we're going to be talking about two jobs, one paycheck, how employment at will became a license for exploitation. Employers are generally free under the law to adjust the duties of an at-will employee as they see fit. Adjust the duties of an at-will employee as they see fit. There is almost no exception. I submit, however, that when adjusting the duties of an employee amounts to doubling their workload, it's time to rethink some fundamental principles of employment law. Picture this You're hired as a director of XYZ Global Sales Department. Six months later, your employer announces you'll be also taking on a second full-time position as Director of Operations, a position formerly held by a full-time employee. Sound familiar? Everyone? It should be. We see this a lot Same salary, double the work. When you object, you're shown the door. That sounds outrageous because it is Under current employment law. It's perfectly legal. In fact.

Speaker 1: 1:31

As a practicing employment attorney, I have recently seen a marked uptick in the number of employees who are terminated or threatened with termination because they are unwilling or unable to take on multiple additional job roles which were not included in their job descriptions at the time they started working. In a tightening economy, employers are tightening up their organizational charts by requiring few employees to do more work than they were originally hired to do, sometimes imposing double or even triple positions on unsuspecting employees already overburdened. Posing double or even triple positions on unsuspecting employees already overburdened. This is happening right now across America, dressed up in corporate euphemisms like restructuring or optimization and increased responsibilities, to name a few. The legal justification a toxic combination of employment at will doctrine and a boilerplate contract provision that grants employers virtually unlimited discretion to quote-unquote adjust the duties. Recent data paints a disturbing picture. According to the Trades Union Congress, 55% of workers report their jobs have become increasingly intense over time, with 61% feeling exhausted at the end of most working days. Shrm's Employee Mental Health 2024 Research Series, released for Mental Health Awareness Month, found that 44% of 1,400 surveyed US employees feel burned out at work, 45% feel emotionally drained from their work and 51% feel used up at the end of a workday. A staggering 40% report being required to do more work in the same amount of time. Further, us employees who feel burned out are nearly three times more likely to be job hunting. These aren't just statistics. They're symptoms of a fundamentally broken employment contract system.

Speaker 1: 3:32

The culprit employment agreements that routinely contain provisions like the company reserves the right to require you to work during other or further days or hours for no additional consideration, and phrases like duties, responsibilities and reporting relationships may be adjusted at any time. End quote Courts have traditionally interpreted these clauses in employment contracts both express and implied employment contracts with absurd breadth, essentially holding that as long as you're still receiving your paycheck, your employer can pile on unlimited additional responsibilities. After all, you're at will. If you don't like it, you can quit or just be fired. Here's what courts seem to have forgotten. Even at-will employment is still a contract. Courts seem to have forgotten. Even at-will employment is still a contract and contracts have limits.

Speaker 1: 4:26

The doctrine of unconscionability exists to deny the enforcement of harsh and unreasonable contract terms. An unconscionable bargain is one which quote no man in his senses and not under any delusion would make, under the one hand, and no honest and fair-minded person would accept, on the other hand. Unconsciousness is determined by reference to the relative benefit of the bargain to the parties at the time of its making, the nature of the methods employed in negotiating it and the relative bargaining power of the parties. When an employer demands that one person perform two full-time positions for a single salary. We have crossed from adjusting duties into exploitation. At that point employment contract, at the heart of every employment relationship, has become an agreement that no reasonable person would make and which no honest person would accept, in which no honest person would accept this isn't a reasonable interpretation of contractual discretion. It's an absurd result that courts should refuse to enforce. Our courts, both state and federal, have long held that contracts which purport to impose commercially unreasonable results will be void as a matter of law. Where the result of the party's interpretation of a contract is both absurd and the opposite of what the parties intended, that agreement cannot be justly enforced. It would be an absurd result to interpret the contract in a manner that leaves one party without a remedy in the event of a breach by the other. As the courts cited in cases that I've worked on and cases that I've read, where a party is prevented from reaping the obviously intended benefit of the contract and where an obviously unforeseen windfall will result to one party, the contract is void as absurd. Consider the reducio ad absurdum Latin phrase.

Speaker 1: 6:26

If adjusting duties permits an employer requiring an employee to work two positions, why not three, five, ten positions? At what point does a court finally say this has gone too far. The answer should be never. In reality, one person can perform two full-time jobs. It is not commercially reasonable to be paid one salary for what amounts to two positions. The very fundamental principle of an employment agreement, either express or implied, is one job, one salary. Every employment contract in New York and Connecticut includes an applied covenant of good faith and fair dealing and it's a famous court case from 1983. It's called Murphy versus American Home Products Corp and the Murphy case limited the covenant's application to at-will employment. It didn't eliminate it entirely when expressed contractual discretion exists.

Speaker 1: 7:27

Requiring an employee to perform multiple full-time roles isn't exercising discretion and good faith. It's weaponizing contract language to extract maximum labor for minimum compensation. Even broad contractual discretion must be exercised with a modicum of common sense Encompassed within the implied obligation of each promisor to a contract to exercise good faith. Are any promises which are a reasonable person in the position of the promisee would be justified in understanding? Were included? Would be justified in understanding? We're included.

Speaker 1: 8:06

The research is clear Work intensification is destroying American workers. The always-on culture enabled by remote work means 36% of workers spend more time outside contracted hours on work emails, while 32% complete more core tasks on their own time. Economic uncertainty drives workers to accept these conditions, fearing that resistance means unemployment. But here's the thing Accepting the unacceptable should be the price of employment or shouldn't be the price of employment. When loyal, hardworking employees refuse to take on multiple roles for the same salary, they are not being lazy. They are imposing human limits on otherwise inhuman and patently absurd expectations. They're making the rational choice not to sacrifice their health and well-being for unfair wages and impossible workloads. Courts should protect their right to do so without suffering economic disaster. Courts should protect their right to do so without suffering economic disaster.

Speaker 1: 9:12

When employers selectively impose dual positions on female employees while sparing their male colleagues, they add discrimination to exploitation. This selective enforcement doesn't just violate Title VII of the 1964 Civil Rights Act and state law and city law. It highlights the arbitrary nature of these quote-unquote adjustments. If the business truly needed one person to fill two roles, wouldn't that apply regardless of gender? This discriminatory application of strengths strengthens the unconscionability argument. Oppressive terms, selectively enforced, reveal bad faith, transforming what we might be defended as business necessity which we hear too often, and from the courts and my pet peeve to the courts into targeted exploitation.

Speaker 1: 9:58

Let's reimagine contractual limits here. Courts need to remember that employment contracts, even implied and at-will ones, aren't licenses for unlimited exploitation by employers. Several principles should guide judicial interpretation. Number one reasonable scope. Adjusting duties should mean modifying existing responsibilities, not multiplying entire positions. Modifying existing responsibilities, not multiplying entire positions. Two proportionality Additional responsibility should bear some relationship to additional compensation. It seems fair, right, but employers are trying to, you know, get a bank bargain for their situation because they realize, especially in 2025, that employees are what Without leverage, to say no Human limits. Number three Contracts cannot require the impossible. Two or more full-time positions exceed one person's capacity Just makes sense. Four good faith boundaries Discretion exercise to extract maximum value while providing minimum compensation violates good faith. Everybody understands that inherently when they see it, but are powerless. Given the current socioeconomic political environment like now, where employees don't have any economic power at the workplace and employers are just steamrolling over them the path forward.

Speaker 1: 11:28

The current moment offers a unique opportunity. With burnout reaching crisis levels, courts should reconsider their reflexive deference to employers. For employers' discretion, the question isn't whether the employers can require anything under at-will employment. It's whether they should be permitted to demand the impossible. Some courts are beginning to recognize these limits the growing acknowledgement of constructive discharge claims when working conditions become intolerable suggests judicial willingness to find boundaries. The next step is recognizing that requiring multiple full-time positions for a single compensation crosses that line. Of course it does. Judges interpreting implement contracts should ask themselves would I accept this bargain if I weren't economically coerced? Would I want my child to sign this agreement? Of course not.

Speaker 1: 12:28

Perhaps it's time to dust off the inconstability doctrine and give it some teeth. The employment at will doctrine was never meant to be a blank check for exploitation. Contract law provides tools to prevent abuse. We just need courts brave enough to use them. Abuse. We just need courts brave enough to use them. Because when flexibility means working yourself into the ground while your employer posts record profits for the sake of Wall Street and shareholders, something has gone fundamentally wrong with our understanding of fair exchange and reasonable commercial expectations.

Speaker 1: 13:02

The next time an employer claims the right to transform one job into two, three or more, courts should remember employment is always a contract and contracts have limits, and those limits exist precisely to prevent the powerful from extracting everything while providing nothing in return. After all, if requiring someone to work two full-time jobs for one salary isn't unconscionable, what is? This is a very near and dear issue for myself. I have a family member who's experiencing this issue currently and that person is really powerless to change it. I don't step in as the employment lawyer father. I just allow that person to figure its way out, but I know what the end result is. The end result is exactly what the article describes and in most cases we've seen this in our clients as well that the employee is really powerless, especially now.

Speaker 1: 14:09

Let's see, it's September of 2025, and employers are in full control of the workplace. There is really no leverage. Employees have Wall Street Journal reports. Employees are clinging to their jobs, staying put. Employers are using the job performance improvement plan to try to send the signal to employees to get out, but that's not working. Improvement plan to try to send the signal to employees to get out, but that's not working. And employees are just staying put to see what's going to happen next. Because we're kind of an economic turmoil. Both corporations and politics are intertwining themselves, and so we have this now new change, where you know we've gone and everybody remembers that we had this for a very brief time this kind of horizon of new employee value. I want to call it that human capital that employees were able to jump ship and bargain for better pay not too long ago in the last five years, and then that's gone away and employers are seizing more control because it's economically beneficial to them.

Speaker 1: 15:27

What will change to resurrect this? I do not suspect, and nor should you, even though the article calls out the judiciary to take a more positive, interactive role with employers in cases. So legal cases are referencing job discrimination typically, where this dual you know, two jobs for a price of one salary situation come up Generally in the discrimination context. You won't see it in the whistleblowing context, but you may. But courts themselves are. They're slow to react. They don't want to engage in policymaking, especially telling employers what to do. This rollover inter-evolvement between the judiciary, economics and business all at the same time, and courts have what's called a business judgment rule. A business judgment rule means that they give discretion to employers, and so I know I noted the issue of the court's role in this, but that's the last to probably change because the courts are so slow to react. I know you're probably saying, well, hell, they're reacting very quickly at the price of one.

Speaker 1: 16:58

It really takes the employee themselves to self-advocate, and that's why I want to bring that last portion up and employees who want to bargain with their employers to essentially saying pay me more compensation so like back to the family member I'm watching go through this. It takes a bit of courage to do that because people now fear, in this kind of clinging to jobs, environment approach, to rock the boat. They're more likely to take two positions for the price of one instead of saying I'm going to go elsewhere and work elsewhere. But nonetheless, I think a very thoughtful and proactive approach to saying to your manager, who also are under stress these days because managers are. You know, there's fewer managers these days. We've had many layoffs involving managers, so they're under stress as well.

Speaker 1: 17:53

So you have to think of a scenario of positioning yourself as a A-game leader type of employee who's the Michael Jordans or LeBron James types. Just think like that and, with the corporation's profit mind and your mindset, make the argument to your employer that you know I can do these two jobs and will do them successfully, but I need more pay and so you negotiate and you know you run the risk that they'll say no, but you have to ask. So I suggest people negotiate because and treat negotiation not as a one-time ask. Be deliberate about it, follow up multiple times, make it known to them that you're unhappy about the current arrangement, force them to examine the issue that they damn well know what they did to you. You know what I'm talking about here. You have two jobs now for the price of one, because they realize they can exploit you and economically exploit you, until you say no and the only fear you have is they'll replace you with somebody who will do that job. But it only runs a short distance before employees decide. No employee will do two jobs from one and the employee will back off and you'll see new hiring take place. So it's a really weird shifting landscape that employees find themselves in.

Speaker 1: 19:17

I would advocate that employees negotiate, negotiate, negotiate and document things via email every time. You do it. So have a verbal conversation, document an email and build that case for why you should be paid more. Or if it's a director who had left and you're now doing the director's job in addition to yours, the director was your former supervisor. You should make the argument that you should be entitled to the director's level of pay. And maybe the argument is well, you're getting one person doing two jobs, but you're not having to pay the lower level, you're just having to pay the lower level. You just have them to pay the higher level, so maybe it's a one-third less of a benefit that they're going to have to receive in terms of salary. They're going to have to pay you, but they're still getting two jobs, but they're getting a more loyal employee.

Speaker 1: 20:05

Maybe that's where you angle that. You say, listen, I'm down for the long haul for this employer. I need trust. It's a bargain relationship. You need to trust me to do my job. You need to pay me what I'm the most accurate and reasonable pay scale for these two jobs you want me to do and work that angle that works every single time and point out the negative side of what can happen if things go not according to their plan. They predict that you're going to do it, but maybe you point out the issues that well, by doing these two jobs with one salary, we're going to point out the negative side effects and sell it that way. So that's my brainstorming just how to get out of this conundrum of a problem that's occurring a lot. The courts will again be slow to react.

Speaker 1: 21:02

The article is designed to prompt judges to think about this. They do listen to the podcast. They do receive the mailings we send out. We can see them on our list, and so you know someone's got to say this, so I'm going to say it. And so try to negotiate, negotiate, negotiate and develop the trust relationship with your employer. Understand the dynamics that's currently playing out at that particular job and in the company. You know be don't think you know single-minded, think you know holistically. You know, look above and beyond yourself and your position, look across the field of play within the employer and figure out the best path forward for both parties, because it's a win-win it should be as a result. So, with that, enjoy, talk to you soon, thank you.