Open Letter to Ashleigh Banfield
November 16, 2009
Open Letter to Ashleigh Banfield
Dear Miss Banfield,
I am terribly sorry to hear about the way you were treated by NBC, I think it is grotesque. I am writing to you as a law student having just worked extensively on restrictive covenants. I recently learned of your contractual censoring following a biting critique of Iraq in 2003:
I was office-less for ten months….No phone, no computer. For ten months I had to report to work every day and ask where I could sit. If somebody was away I could use their desk. Eventually, after ten months of this, I was given an office that was a tape closet. They cleared the tapes out and put a desk and a TV in there, and a computer and phone. It was pretty blatant. The message was crystal clear. Yet they wouldn’t let me leave. I begged for seventeen months to be let out of my contract. If they had no use for me, let’s just part ways amicably — no need for payouts, just a clean break. And [NBC News President Neal Shapiro] wouldn’t allow it. I don’t know what his rationale was — perhaps he thought I would take what I felt was a very strong brand, and others felt was a very strong brand, to another network and make a success of it. Maybe that’s why he chose to keep me in a warehouse. I will never forgive him for his cruelty and the manner in which he decided to dispose of me. Huffington Post
The Validity of a Contract/Non-Compete Depends on the Terms
Contracts may not force servitude. Courts have struck down agreements that serve no purpose other than to unduly oppress an employee. The justice system is not indifferent to unfair contracts. A court finding that terms are against social policy will use it’s authority to excise and modify unfair portions. I recently wrote about the Al Franken’s Anti-Rape Amendment, which is a great example about how companies exploit employee’s via contracts – but this isn’t ADR – it’s a far easier issue. Keep in mind that if a reasonable person finds something grossly unjust, there is likely a legal argument to support that feeling.
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I understand that you personally suffered, which if verifiable and correct, is repulsive to the average person. If NBC refused relieve you of the contract, then this may be a prime example of the power imbalance in workplace setting. This power enables denigrating conduct because a person feels trapped.
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I find it particularly egregious when employer’s use contract to exert authority over the serfs in the fiefdom, a jury may think so as well. Humiliating you while they had control is inexcusable. Miss Banfield, you were the victim and deserve justice.
Unduly Oppressive Terms Quite Often Fail in Court
If I may speculate on the nature of this contract, I would think NBC used a claim of “customer goodwill” wherein you were connected with the brand. Their argument following that should you appear anywhere else NBC may be damaged as well as their investment in you. It would be callous to think of a person as such a static object as well foolish to think NBC would truly be injured.
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Then, to add insult to injury, I suspect a strong Non-Compete clause was tailored so that you, Miss Banfield, felt pressured to continue coming to a hostile workplace with a chance you may be able find chair. When signing this contract did you bargain for these highly repressive terms? I doubt it. Often, when employee’s continue to endure such humiliation they are under duress; perhaps a contract so restrictive that they would never be able to work in the industry. Only later do they find it was largely unenforceable, you didn’t know but an employment attorney would have caught it.
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The harm you suffered was life altering and intense, while the harm to NBC would have been minimal. It was not only unfair, but oppressive. If you didn’t have competent legal guidance I could imagine the NBC legal team using a parade of authorities to scare you into submission. It is a widespread problem inherent with the knowledge and power imbalance of the parties.
Miss Banfield, you have a special position as a journalist to expose this employment nightmare – there is a professional responsibility. Use your personal narrative to illustrate the suffering that others surely feel. Make this your issue.
The court is not blind to the plight of restrictive agreements. Do not think that merely signing an agreement waives your human rights. Included is a short summary of the elements for IIED.
Elements of Intentional Infliction of Emotional Distress
1. Defendant must engage in extreme and outrageous conduct.
2. Intentionally or Recklessly to cause emotional distress.
3. Plaintiff must suffer severe emotional distress.
Noting your particularly cruel treatment and efforts to end the unfair contract, I would exclaim “Outrageous”. This exclamation is a metric used in the Restatement of Torts : Where the infliction of emotional distress reaches far beyond a reasonable conduct to the point that an average member of the community would utter this charge upon hearing the story.
Conclusion: This Story Can Help Others
This case extends beyond you Miss Banfield. I urge you to use your unique situation to ensure this injustice becomes public. As a journalist you must have a great desire to use the forum to advocate for social good. Seek out a good attorney who specializes in (1) Employment Contracts (2) Restrictive Covenants (3) IIEE Torts.
Sincerely,
Michael Kraemer
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addendum
I felt this was appropriate because Miss Banfield may have been the victim of a morally corrupt NBC legal team. Having consulted with other students at various schools, I have begun to notice a disturbing trend in law school. Students are trained to methodically pick apart complex concepts, yet not taught compassion. Doesn’t morality come from ethics courses? No. It isn’t taught in the abstract.
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During undergraduate I read a book by author David Shipler which conveyed personal plights of poverty. Inside this revealing work, the reader learns about the true struggle to survive. Walking in shoes of another shocks the conscience and teaches an importance perspective too often ignored in the legal profession.In this trenchant and sensitive study of Americans at the lower end of the economic ladder, a journalist documents the struggles of working people with low-wage jobs who are caught in the trap of poverty.
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Lawyers are influential members of society – be it in the court room, legal departments, or in Congress. Why is this profession considered conservative? Perhaps it is the disproportionate enrollment of upper middle class individuals with no real connection to suffering. Law school should require a class that teaches about hardship or pain, I want people to see the face of others whenever they author an oppressive contract.
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Can the subaltern speak? Or, can the less-than-affluent and those in abject poverty represent themselves, politically or socially? Not likely. So, who else than those of the upper middle class with no real connection to suffering?
Out the entire article you choose to pick the personal criticism vs. anything on the merits. Growing up, yes upper middle class; by suffering I am trying to get at the deeper concept of people being exploited by lawyers. The purpose of the addendum is to open up a dialogue about the sterile moral learning of lawyers. To me, I find that if a person does not have a good perspective it is easier to make legal terms harsher.
For myself, while traveling Asia on scholarship, my motorbike ran out of gas and a M’Nong family took me in and gave me shelter and provisions. Those moments in life when you connect with another person is life altering.
I want lawyers to have empathy towards people. To put it another way, trained legal professional can be like a jedi without a moral compass – the power can be intoxicating.
Star Wars reference? Really? Haha
I can understand the desire for compassion, but I’m unsure of how that impulse fits in with the ethics of the legal community. Lawyers are supposed to advocate for their clients and push for the best outcome for them. If they start having compassion for the ones whose interests are opposite of their clients, that can be subversive.
An employer-employee relationship involves competing interests. The lawyers for one party should not really be expected to look out for the interests of the other. That is why both parties seek independent counsel.
And you would be 100% theoretically correct. An adversarial system with each party having a brilliant lawyer would be great. But the reality is one party often has far more legal power. Not equal. Oppressive terms can be especially damaging to those who don’t understand them and can’t afford a lawyer.
There should be an employment bill of rights…
“Lawyers are supposed to advocate for their clients and push for the best outcome for them. If they start having compassion for the ones whose interests are opposite of their clients, that can be subversive.”
+1
I know, and we should work out a uniform code of employment relations sometime.
But that advocacy doesn’t fit with high-level negotiated contracts like this. The employee you are writing about isn’t one of those “who [doesn't] understand them and can’t afford a lawyer.”
Even if contracts are negotiated at a high level, terms still can offend justice. Contracts reach into the future in a way people can not predict. Great to illustrate how manipulative contracts are dangerous to society even when the advocate system functions correctly.
Okay, but now we are talking about something different. We don’t disagree about enforceability of unconscionable terms. I am just saying that lawyers advocating for their clients shouldn’t be called corrupt or immoral.
That is the fine line. Do clients that are objectively wrong still deserve your services?
No, they don’t.
A quip tip….you might want to do a “spell check” and “peruse” your work “first” before you put it out there next time……….
It’s not written very well :-(
Don’t give me that sad face. I could not find a single word misspelled. Only if firefox has a grammar plug-in… haha… Do you understand the material and issue presented? Was this merely a pedantic criticism?
Petitioning that lawyers should receive training on moral conduct, beyond ethical, is not “emotional crap”. The adversarial system has its benefits, but in cases of unequal bargaining power the lawyer should be encouraged to take into account the person in peril.
As for the life altering part, I have heard this type of dismissive talk before. Travel is generally held to be an influential factor in the growth of a person.
Thanks for your comment.
“The adversarial system has its benefits, but in cases of unequal bargaining power the lawyer should be encouraged to take into account the person in peril.”
No, they “should” not.
A lawyer’s duty is to their client. Not to their client’s adversary. Not to their client’s opponent. Not to their client’s lender. Not to their client’s employee, nor to their client’s partner (unless the client is the business itself, and the partner or employee comprises [a part of] the business, or if the attorney is serving in an in-house capacity, but I digress…).
All this talk about “unequal bargaining power,” lawyers having “empathy towards people” (people who are, presmuably, not the lawyer’s clients), and contracts having “oppressive terms” is bunk. No one forces anyone to enter into any contract. If you don’t like the terms of the contract, then don’t execute the contract. If you think that the terms are opppressive, either negotiate more favorable terms or don’t execute the contract. And, in the transactional realm, drafting contracts that have “empathy” towards the other party is a quick way to find yourself unemployed and, quite possibly, disbarred.
You want empathy in the law? You want law students to learn about “hardship or pain”? Take some criminal law and criminal procedure classes. Maybe you’ll find it there.
I’m not particularly interested in this discussion, but the arguments against “ethical” lawyers seems to rest on the assumption that the lawyer ought to be impartial towards the consequences of his actions. The picture painted by those opposed to Michael’s compassionate lawyer model seem to think that lawyers operate in an amoral vacuum where the only thing that matters is the status of respective clients. Talk about blunt realism. I know out “in the real world” compassion and consideration for the parties not related to the client is more often than not left at the door, but that doesn’t make it right and certainly doesn’t make positions to the contrary “bunk.”
Then again, you could take the lawyer-client relationship and apply it to the state-natinoal interest relationship and you’d see me employing rather similar logic to defend a realist position on power. However, that doesn’t mean that all notions of benevolence, consequentialism, or enlightened self-interest fly out the proverbial window.