A Disturbing New York Law (and What CFI Could Do about It)

In my last article about CFI’s disastrous communications in the recent sexual harassment case, I said there was a second thing about this case that disturbed me that I would write about next: something about the legal and corporate culture at CFI. I hinted at this again when I said “I’m told [the harasser] was punished somehow but no one can talk about how” to which I added that “this is a serious problem I will be taking on in my next post about this matter.”

This is that post.

Conveniently, a commenter sussed what I was referring to and spelled it out well enough that I can just quote them here. As David Janes explains:

Depending on labor law in New York, they may or may not be able to share the results of an employee disciplinary process with anyone other than the employee being disciplined and the supervisor(s) involved.

This is not a defense of CFI by the way – just that in my experience it has become nearly impossible to publicly share any part of an employee’s work experience with the outside world other than their dates of employment. It’s one reason the reference process during hiring has become nearly farcical. You spend a lot of time playing telephone tag for a 15 second confirmation of the hiring and termination dates.

To which I replied:

I am aware of this. And it is something that disturbs me deeply. I’m going to blog about the fundamental and disastrous injustice of such a law soon. It shouldn’t be hard to realize why that law makes every nonprofit organization untrustworthy (against their will even, which is even more unjust) and essentially would be the Catholic Church’s wet dream (I mean, not only being legally allowed to conceal unethical behavior from the public, but being legally required to…how brilliantly evil).

Now I will explain what I meant.

I will assume from here on that I have been correctly informed regarding New York labor law (by multiple sources so far), and that it really is this draconian in silencing companies from disclosing unethical behavior in its own ranks. Any of my following conclusions could change if that is not the case. (So if anyone knows otherwise, please inform us in comments.)

The Evil in General (Why CFI Should Be Doing Something About This)

I’ll start with the broadest implications.

(1) If I cannot disclose unethical behavior of an employee (or how it was dealt with, which is an important measure of its severity), and that person applies for a job elsewhere, and their boss calls me to ask if they can trust them as an employee, I cannot tell them. They could have been one of the most awful, sleazy, dishonest, unethical people ever to skirt just this side of the law, and I cannot tell them.

How is this any different from the Catholic Church moving pedophile priests around and not informing their new parishes? It may differ in the one single element that maybe (possibly) they could have been convicted of a crime and maybe (possibly) then the employer could mention that (as then it would be a public record). But not all unethical behavior is criminal, and even when it is, it can rarely come to trial (and thus rarely becomes a public record). This case in particular: if someone is applying to work for me, and they have an established record of sexual harassment, surely I should be told this.

A law that not only permits his past employer to conceal this from me, but actually requires his past employer to conceal this from me, is indeed the Catholic Church’s wet dream. Why CFI would not be openly denouncing the injustice of this law and calling for lobbying to repeal it is beyond me. They would do so if the Catholic Church were using it to hide pedophile priests (as obviously they could: sexual harassment of children that never went to trial, perhaps for lack of sufficient evidence to guarantee a conviction but with sufficient evidence to rightly worry anyone, would be covered by the law!). So why aren’t they denouncing it now?

Why even bother giving references when applying for a job, when past employers can’t tell you anything? Do we want to live in a world where this is the case? I, for one, do not. Such a law only protects liars, thieves, bullies, frauds, and victimizers. From their future victims no less. It also protects incompetence, since one cannot even tell future employers that an applicant was repeatedly disciplined for incompetence at exactly the kind of job they are applying to continue.

(2) If I am a nonprofit organization lousy with unethical employees, I am forbidden to tell our donors this. Even though I think the entire organization is rotten to the core with sexual predators and dishonest snakes, and even if I have documented this, to the point of warranting disciplinary action again and again (even if I knew the disciplining was a joke and hardly adequate), I cannot mention it. At all.

Now think about this from the POV of a financial or moral supporter of any nonprofit organization gagged by this law. You cannot know if they have ethical or unethical employees even when there is extensive documented evidence of the latter. Nor can you know if they don’t do anything significant about it or even care. How can you morally support an organization blindly like that? You literally can never know how immoral and unethical its employees have been, even the very employees you may be working directly with and depending on (or asking to speak at events, for example, or trusting with your money, or anything important).

If that doesn’t scare and worry you, you haven’t thought this through.

We cannot trust any nonprofit organization subject to such a law. So why would any nonprofit organization simply comply with it without openly denouncing the injustice of it and fighting for its repeal?

Just imagine that we found out that churches were using this law to not only allow rampant unethical behavior, but to support it by dishing out trivial reprimands every time someone finally complains about it. CFI would be outraged and campaigning openly against the injustice of such a law. Yet now, they are actually hiding behind it, seemingly without complaint.

(3) CFI has stated as a main concern (and I agree it should be) that future complainants need to feel encouraged to come forward when they observe or encounter unethical behavior in fellow employees. But this law prevents such complainants from ever seeing any results whatever from such complaints. How does that help encourage them to come forward? Moreover, if no one can ever see what the consequences are of any particular behavior, how can anyone be dissuaded from that behavior?

Imagine a criminal justice system in which no none ever knows how any convicted criminal was punished. Or even that they were. Such a system would have exactly zero deterrence value. And deterrence is one of the primary utilitarian purposes of punishment–without which there is barely a reason to punish anyone for anything. It can perhaps affect the punished (maybe, but who knows, since we can’t ever see it?), but it can have no positive effect on the society as a whole, except insofar as prison would keep victimizers away from society, but in the arena of employment discipline that’s not an available option–in fact, this law even prevents the utilitarian function of isolating a wrongdoer from future victims, by making it impossible for employers to inform future places of employment (or indeed any potential future victim) that they are sending a wrongdoer their way. (Indeed, it seems like they can’t even warn fellow employees within the same company, or reassure them that it was adequately dealt with.)

Do we really want to live in a world where no one can learn what the consequences of a behavior are, because they are never allowed to see it? How can anyone have confidence in any justice system when no one is ever allowed to see justice done? How can this even be good for our economy? Think about it. Bankers won’t ever see any misbehavior in their ranks punished. Hmmm. I wonder what the social consequences of that might be…

The Evil in Particular (The Questionable Ethics of Ron Lindsay)

All this brings me to disclose a case I was involved in, also involving CFI. It’s nothing as horrible as harassment. It’s relatively minor. But it illustrates my general point. A while ago, I caught Ron Lindsay engaging in unethical behavior and reported it privately to the CFI board of directors. Nothing evident was done. I was not even told (at least in any clear manner) if the matter was discussed, if the behavior was confirmed, or if anything happened as a result of it. When I complained about that, I was told I wasn’t allowed to be told any of that because of this law.

That’s right. You heard me. I was not allowed to be told anything at all that came from reporting unethical behavior to the board. Not even that an investigation had occurred. Much less that it was confirmed. Even less that anything was done about it. I was “unofficially” assured that something had been done (and it was hinted that he was punished somehow…but only hinted, and nothing was said about how, so I have no idea if it was even significant or even occurred).

The unethical behavior I reported occurred just hours after I publicly criticized Lindsay (and at the time just him, not CFI, and in which the worst of what I did was call him an “ignorant blowhard,” two descriptors I then supported with evidence: see What Do Ron Lindsay and an Oklahoma Tornado Have in Common?). Almost immediately the directive came down from Ron Lindsay (in secret) that I was to be blacklisted from ever working for the CFI Institute again (I occasionally work as a contract instructor for their online courses…or at least I did).

This was unethical for a number of reasons:

  1. It is a paradigmatic example of the abuse of power: using his office not to benefit CFI’s mission or the community it serves, but to pursue purely personal vendettas.
  2. It is (most ironically for a secularist organization) acting basically like a Pope (with banned lists and excommunications; in secret, no less, which is actually even worse…the Pope at least tells you). Not that I am against such things altogether, since unethical behavior can certainly rise to the level of banning someone from events or employment, but only Popes ban people for being ethical (like, say, voicing honest and important criticisms of the Pope).
  3. It is a violation of the core principles of academic freedom (and freedom of speech). There can be no academic freedom when we allow an educational institution to interfere with the academic freedom of its teachers by threatening them with dismissal for exercising their free speech ethically and outside the institution (and explicitly not in any way affiliated with it). You have returned to the era of Medieval scholasticism, where ideology, not facts and evidence, decide what teachers are allowed to say. Indeed, if teachers cannot criticize the educational failures of their own institution’s leaders, the quality of the institution rapidly declines (as then it is immune even from criticism and thus never has to do better or even know that it should be doing better).
  4. It is an example of attempting to silence one’s critics by literally attacking their financial livelihood. For a skeptic’s organization, committed to evidence-based reasoning and the avoidance of fallacious argument (like the ad baculum fallacy), this should be the most embarrassing aspect of this case.
  5. Finally, it opens him to charges of being a liar. Many people told me that Lindsay couldn’t possibly have done this because he has repeatedly and adamantly spoken out against blacklists and openly opposed the very idea of them. Alas, I have actual documentation, from multiple independent sources, sources of definite reliability, that Lindsay banned me (and yes, it will hold up in court). So it happened. So if he has been telling people he is against blacklists even in principle, while actually using his position at CFI to enforce his own secret blacklists, he is also a liar. And dishonesty is certainly a significant breach of ethics.

Since I only know of my own case, there is no telling how many other people Lindsay has blacklisted and thus denied employment for petty personal reasons, or how many other things he may have been duplicitous about, proclaiming to be against it in public while resorting readily to it in secret. There is no telling how many other instances have occurred in which Lindsay abused his power or engaged in other unethical behavior. Even if he was caught. Because CFI is disallowed from ever telling us. (It’s only worse that as anyone knows, someone caught engaging in unethical behavior has probably done it a lot more times without getting caught.)

Now think this through. If Lindsay applies to some future job, CFI cannot tell his prospective employer that he acted like this, even if that employer asks specifically about whether he has shown strong respect for academic freedom and professional integrity and can set personal vendettas aside and serve the interests of the company instead…in other words, the kind of things an employer needs most to know when deciding whom to hire. A future employer like, say, a university.

To this day Lindsay has never apologized to me for doing this (or even admitted to me that he did it, much less confessed to the public that he did it and apologized to the whole CFI community for this poor judgment and abuse of office). He has not, even to my knowledge, rescinded his blacklisting of me (even though it has been hinted at me that it was nullified by the board, I have been unable to confirm this in any way at all). And that’s where this matter stands.

This does not cast in a good light anything else CFI is doing. When you hear about their handling of the Stollznow harassment case, remember how they handled my case. And be worried.

Conclusion (And This Is Very Important)

What should disturb you about my personal story is not just that all this happened (although it is a little disturbing), but much more so, that this means Lindsay could have engaged in tons of unethical behavior, affecting dozens of people, even tons for which he was caught and disciplined, and we could never know. Because the law forbids CFI from telling us. Us. Their very supporters.

Think about that.

Now ask yourself: Are you going to do something about this?

The most I suppose we could do is get information on exactly what law this is, so we can write letters to the New York State legislature identifying what is wrong with it and asking for its repeal. And since CFI keeps referencing this law at me, they presumably know exactly which law it is, and could launch a web campaign identifying it and calling on its constituents to write those letters and thus lobby their state’s legislature to end this unjust law, a law that only protects victimizers (even from their own future victims), and even makes it impossible for people to know if the charities they support are ethically run. They would do this if the Catholic Church were hiding behind this law. So why shouldn’t they be doing it now?

This law even damages our economy. And legislators might at least listen to that last point. This law, by preventing bad apples, both incompetent and unethical persons, from being identified and labeled so their true economic value can be clear to prospective employers, our economy is necessarily harmed, in much the same way flawed derivatives were allowed to be sold, thus tanking our entire economy (whereas if the flaws in those derivatives were allowed–nay, required–to be disclosed, few would have bought them, which is the actual outcome we should want, not a law that requires such flaws to be concealed when sold).

Imagine, for example, a law that prevented home owners from disclosing failures of structural integrity in the house they are selling…a law, mind you, that doesn’t merely allow them to do that, but actually forces them to do that. This would in effect force them to behave unethically. As this law does. The only difference is that we are talking about employees rather than houses, and direct sales rather than vouching for assets on an open market. But in economic terms, these are not a significant difference. It should be illegal to conceal defects in a product you are putting on the market. Not illegal to disclose them.

This law should be abolished even just from the perspective of the rudiments of justice: we should not be gagged by law and prevented from reporting injustices we know about, especially when they are relevant. If I know an employee engaged in creepy and unethical (but perhaps not quite clearly criminal) behavior toward a child (hello, Catholic Church…or Penn State), and I know that employee is going to continue working with children, am I not ethically bound to report what I know, even if (indeed, especially if) I am his employer? Yet this law prevents me from doing that. It actually makes it illegal for me to do that.

How fucked up is that?

So, please. Do something about this. Ask CFI to identify the faulty law, and whom we can lobby with that information to get it repealed. At the very least. And in the meantime, recognize that you cannot know if CFI (or any business in the State of New York, for-profit or nonprofit; market or hospital; bank or charity) is run ethically or that anyone who has ever worked there is ethical and competent. Because the law forbids them from ever telling you. Even when they know the answer is no.

 

Comments

  1. JSC says

    I think the fundamental concern the law addresses is that employers are not neutral parties and not in a position to prove guilt regardless of how clear cut it seems. The principle of presumption of innocence holds despite any censure the organization decides to mete out.

    Consider the same issue from another perspective. If a former employee was sexually harassed, refused to submit and was fired or left the company on their own due to the harassment. What’s the likely outcome if that person lists their former employer on their resume and their former boss is allowed to give their biased opinions about the reason for that employee leaving? I’m not certain but I’m fairly sure this is the exact situation the law was meant to prevent.

    False accusations of sexual harassment aren’t completely unheard of either (it’s extremely hard to tell how often) so the same could happen to the manager though now it’s the company besmirching the former employee based on their HR records rather than personal vendetta. The end result is the same — an innocent party is presumed guilty and has had their career ruined.

    Sadly, many laws and rights that protect victims also have the unintended side effect of protecting the occasional wrongdoer as well. It’s the price we pay to protect the innocent.

    Maybe there’s a better solution, I don’t know. The only clear dividing line I can see is where the claims have been evaluated by a neutral third party — i.e. it has gone to court.

    • says

      What’s the likely outcome if that person lists their former employer on their resume and their former boss is allowed to give their biased opinions about the reason for that employee leaving? I’m not certain but I’m fairly sure this is the exact situation the law was meant to prevent.

      No, that pertains to protecting victims, not perpetrators. We’re talking about the harasser being fired and his employer not being able to tell his next employer the reason he was fired (even if asked). (Which obviously could be done without naming the victim.)

      Maybe there’s a better solution, I don’t know.

      There must be. Because right now the law prevents any unethical behavior from being disclosed…even by a charity to people financially supporting it, even to a future employer who is specifically concerned to hire an ethical employee.

      The remedy is simply to report the facts as ascertained. If those facts consist of an uncorroborated but unrefuted accusation, then that’s what should be said (although one should explain why disciplinary action was taken if it was, which entails describing how serious that disciplinary action was, because that speaks to how severely the employer considered the trusted elements of the case). If those facts consist of a refuted or partially refuted accusation, then that’s what should be said. If those facts consists of a verified or partially verified accusation, then that’s what should be said. Meanwhile, any false fact claims would already be covered by existing libel laws.

      In other words, the economy should be based on true information. Not information concealed from economic actors who very much need and deserve to have that information so they can make sound and informed decisions.

      Plus all the other reasons I enumerate.

      In short, this draconian silencing law is very definitely an unjust solution to any problem. Something else is required. Indeed, even a total repeal would be a better state to be in than the one this law forces us into now. The fact that it compels people (e.g. employers) to behave in what any objective analysis would show is unethical (in the absence of that law) should be enough to make that clear. But there are half a dozen other reasons besides, as I’ve noted.

    • JSC says

      You skipped the next paragraph where I point out that the accused can actually be the victim. The first was just an illustration of why I think the law was made in the first place but the next was almost certainly taken into account as well. The harassed are often accused of other things and fired before they even have a chance to file their own complaint. It’s not uncommon for there to also be cross-accusations as in the common case of retaliatory firing and wrongful termination suits — so now what, you release the names of both accused but neither of the accusers? Doesn’t the accused have the right to face his accuser? They don’t typically in HR resolutions. What if this person serially makes false accusations, how would that come to light?

      Using libel and anti-defamation laws as a remedy is a bad idea as well — not just because those laws here are rather lax. Now you are asking the innocent to prove their innocence in order to receive injunctive relief after they’ve already lost one job and a chance at one or more others — if they somehow find out why they weren’t hired which is rare. That violates not only the presumption of innocence but the right to due process because there’s no remedy for the lost opportunity.

      What should the company disclose? Hearsay from two parties that are likely pointing the finger at each other? The company’s conclusion which is likely biased? Note that because most of these cases boil down to the word of two people, most employers would avoid giving out the information anyway since that would open them up to libel suits. They are now directly responsible for publishing defamatory accusations which makes the employer jointly guilty of libel. If there are accusations both ways, the company can’t avoid it. The company doesn’t have the protections afforded to the press and there’s no way they can reasonably be considered an unbiased/disinterested party just reporting both sides.

      In order to say the law is unjust, you’ll have to prove the law in fact does more harm than good. Keeping in mind that our legal system is biased (however slightly) to avoid punishing the innocent. It’s a worthwhile thing to study though I’d be surprised if it hasn’t been already since these laws are quite common and have been around for quite some time. The way I see it, the cut and dry cases come out anyway through the courts and public corporate filings (risk disclosure) and the less clear ones can come out in the press if warranted so I can definitely see how there’s potential for more good than harm by preventing retaliatory actions this way.

      If it can be proved, I agree the information should be available. An employer is not the right body to make that determination, however. Of course if it’s legally actionable you should probably skip the internal HR BS anyway at which point this is all moot.

      Where I do fully agree with you, though, is that employees who report something probably should be able to determine the outcome so they may take other actions if necessary. I don’t know that this provision is as common. Often it’s not worth escalating to a lawsuit or criminal charges if the employer does take action but if you don’t know the outcome, you can’t decide. I don’t see a really good rationale for sealing the punishment since any drastic punishment (like firing or transfer) will be readily apparent to the accuser anyway. I expect it’s there to give the company cover so it isn’t sued by the accuser if they determine the accusation is false or lacks sufficient evidence.

    • says

      You skipped the next paragraph where I point out that the accused can actually be the victim.

      You mean, of an uncorroborated or unverified accusation? That remains what it is: an uncorroborated or unverified accusation. The fact of it being uncorroborated or unverified would then become an essential part of the reported case, which would not even need to be reported if no discipline finding resulted.

      Uncorroborated or unverified accusations are not what I’m talking about (and are not what the law I’m talking about pertains to–it pertains to even corroborated and verified accusations).

      So I think you are not grasping what has happened here.

      The fact is that it’s not as if the accuser couldn’t just go public with a false accusation as easily as they filed a formal complaint with his employer. Thus the employer is under no obligation here except to report what it did or did not find and what it concluded and why–and even then, only if it found something worth a discipline action. Otherwise nothing was found. And therefore there is nothing for it to report (to anyone; constituents, donors, future employers, anyone).

      But then that is what a company should be able to say when in a situation like now: where the accused has indeed gone public.

      Unless, of course, they did find something. Then they should be allowed to say so (at the very least), and should even be required to say so at least in certain obvious cases (as when a future prospective employer calls asking, or when a charity must publish reports to satisfy actual and prospective donors that the company is being run ethically, or when fellow employees need to know what a colleague was disciplined for so they don’t become victims of it, too, or trust in their competence when they shouldn’t, or whatever the case).

      The harassed are often accused of other things and fired before they even have a chance to file their own complaint.

      And legally hiding all this is certainly of no help to them. Concealing all accusations whatever (and all actual investigative findings from them) is simply not a reasonable solution to the mere possibility of false accusations. That simply benefits the victimizers far more than the victimized. Moreover, in clear-cut cases, it compels charities and businesses to behave unethically (such as concealing known facts that will leave future victims exposed and unknowing).

      Certainly, it already makes sense for a company to conceal false accusations (even just from a libel law standpoint). No special law is required for that. But once they are no longer concealed, that company should be allowed to say it found it false, or couldn’t come to a decision, or whatever it was. And when the accusation wasn’t false, but was actually corroborated or verified in some respect, we’re in a wholly different scenario.

      Doesn’t the accused have the right to face his accuser?

      Radford was not only told who his accuser was, he was given all the evidence she presented. But when he accused her of lying (and other still unstated things), she was not told what evidence he gave for that, or what other witnesses made accusations against her in defense of him. This is unfair. The accused should indeed get all this information, just like you said. Yet in this case, it appears the man was, but the woman wasn’t, even when both were accused of something.

      But this is all moot to the issue of public disclosure (to charity donors and constituents, future employers, and fellow employees who have to keep working in the resulting environment). What someone was found to have done and how severe it was (based on its punishment level) does not require disclosing the victim. The victimizer can then do so, but we’re not talking about what the victimizer may or may not do, but what is ethical or unethical for their employer to do.

      The victim can likewise go public–as has happened in this case: thus the question of their identity is now moot, therefore CFI cannot offer “protecting this victim” as a reason to continue being coy. (So it is instead using this “law” as their reason to say nothing. And that is what makes this law unjust in this case. It is all the worse that I could think of a dozen even worse ways this law can lead to injustice, as I list in my article.)

      What if this person serially makes false accusations, how would that come to light?

      The only way you could say they were serially making “false” accusations is if you confirmed they were false. And indeed, if that’s the case, that is precisely the sort of thing that should be announced, and not concealed by law.

      Remember, we’re not talking about accusations that result in no finding of guilt or discipline. We’re talking about accusations that did result in a finding (of some kind) of guilt and (some kind of) discipline. (That would include accusations that were found to be false–lying being unethical behavior indeed.)

      Moreover, we’re not talking about a confidential matter anymore, but one in which the accuser has gone public and the accused has now been identified. CFI (or any business or charity) should be allowed to discuss the facts of such a case, exactly to the extent they found them to be, especially now. Yet the law prohibits them. That is unjust. And bad for victims, the economy, and the public trust. For all the reasons I lay out in my article.

      Using libel and anti-defamation laws as a remedy is a bad idea as well — not just because those laws here are rather lax.

      You are misunderstanding the problem. That it is hard to get a conviction for something can never, in any universe, be a valid reason to conceal evidence of what happened from the public and even future employers who are entitled to know what was found. Again, for all the reasons I lay out in my article.

      You cannot use the mere possibility of false accusations to ban us from ever hearing about true ones. That’s simply perverse.

      What should the company disclose? Hearsay from two parties that are likely pointing the finger at each other?

      First of all, eyewitness testimony is not hearsay. Hearsay is reporting what someone else said they saw or heard. The distinction matters.

      Secondly, if indeed all that was found was conflicting accusations and no evidence supporting the veracity of either party, then there is no discipline case to report (so this is not what I am talking about; I am talking about when employers find someone sufficiently in violation to punish them), and then when one party goes public, that is exactly what should get reported: that “all that was found was conflicting accusations and no evidence supporting the veracity of either party” and “no grounds for disciplining the accused were found.”

      See how easy that is?

      In this case, some sort of finding of guilt was found (apparently), based on verifying evidence. And that’s what CFI should be allowed to say, even as to what was verified and how. Because that’s what they were witness to. And witnesses should not be gagged without good reason. There just is no good reason in this case. So the law that is gagging them is unjust. It therefore must be struck or revised.

    • JSC says

      You mean, of an uncorroborated or unverified accusation?

      False accusations can also be corroborated. Corroboration is evidence but not proof. Consider the witch trials or any number of modern cases with multiple accusers. Even if the company has e-mails or video that are evidence they could possibly be interpreted in different ways. There’s rarely a “smoking gun” and even supposedly unbiased courts get it wrong with alarming regularity.

      The harassed are often accused of other things and fired before they even have a chance to file their own complaint

      And legally hiding all this is certainly of no help to them.

      It is most certainly of help to them. Their employment record doesn’t contain potentially false accusations that prevent them from getting future jobs. Depending on the situation, they may not want to have the termination reversed or have their name dragged through the mud publicly so all they really care about then is being able to move on. Regardless of any rebuttal, counter-claim or other defense offered, it’s very likely to impact their future job opportunities negatively.

      The victim can likewise go public–as has happened in this case: thus the question of their identity is now moot, therefore CFI cannot offer “protecting this victim” as a reason to continue being coy.

      Again, neither we (the blogosphere) nor the employer are qualified impartial arbitrators of who is the victim in this case. You personally may have enough information but I can’t attest to whether or not you’d be impartial. The company likely has the most information but it’s highly unlikely they can be impartial. All I know are there are accusations on both sides and I don’t know them in detail. My interest was more in the law you’ve condemned with this article rather than the specifics of this case.

      What should the company disclose? Hearsay from two parties that are likely pointing the finger at each other?

      First of all, eyewitness testimony is not hearsay. Hearsay is reporting what someone else said they saw or heard. The distinction matters.

      It is most certainly hearsay when the company reports the accusations of an employee or witness. It’s the company disclosing the accusations that is at issue. The accuser and accused can say whatever they like publicly and that IS eye-witness testimony. Now if both parties want to provide signed affidavits properly witnessed to their employer, great. Then the company will just need some legal protection against libel laws for publishing them (like the press has) along with consent from both parties for their individual contributions.

      You are misunderstanding the problem. That it is hard to get a conviction for something can never, in any universe, be a valid reason to conceal evidence of what happened from the public and even future employers who are entitled to know what was found.

      You are responding to the wrong thing here. I said “not just because those laws here are rather lax” because that’s a common (and not very good) argument people make about libel laws in the US but it’s the rest of the paragraph that follows that was my argument. Sorry if that was unclear, I was trying to get it out of the way.

      In this case, some sort of finding of guilt was found (apparently), based on verifying evidence. And that’s what CFI should be allowed to say, even as to what was verified and how. Because that’s what they were witness to.

      Wait.. the company is a witness to its own quite possibly biased internal fact finding mission? I’m not sure how that’s relevant. I’m assuming this wouldn’t even be an issue now if it wasn’t biased since at least one of the accused would have been fired at which point what is the ongoing issue?

      I DO think they should be able to report the finding and steps taken to the accuser as I said previously, though, but it gets tricky if the steps taken were financial as separate laws protect that sort of information. I could even go for having companies with public reporting requirements being required to give a numerical breakdown of HR cases and how they were resolved as the statistics could prove quite enlightening to investors or donors. It’d be difficult to enforce due to the confidentiality issues, though. Right now they are only required to report if there’s likelihood of a financial impact such as threats of lawsuits against the company or key employee.

      I am talking about when employers find someone sufficiently in violation to punish them

      Many companies will fire, transfer, demote or otherwise penalize an employee without sufficient evidence just to cover their asses. Particularly in work at will states where you can be let go without cause. Should they still report it then? Who makes that determination? Again, the company is neither a witness nor an impartial 3rd party so any determination made for internal reasons are not relevant to anyone but the accuser and the accused and then it only goes to whether or not they are satisfied with the action taken.

      Allowing “the company” to make biased statements that impacts the future of its employees is a bad idea and we know it’s bad because it used to be a very big problem particularly for women, lgbt individuals, people with disabilities, people injured on the job and, yes, even atheists and people with even wackier beliefs than Christianity.

      Are the side effects worse? I doubt it but I don’t know. Like I said before, someone should study it if they haven’t already.

      “The company” is definitely biased and can’t really testify to anything as an entity but individuals can. There’s nothing stopping any employee of the company (even the CEO or HR director) from going to the police or testifying on behalf of the accused or accuser, by the way. Unless that individual is a witness, though, it’s unlikely they’d have anything relevant to add. HR and certain key employees are gagged as representatives of the company when acting in that capacity but not when it becomes a legal issue.

      The entire point of your conclusion is moot anyway…

      Conclusion (And This Is Very Important)
      What should disturb you about my personal story is not just that all this happened (although it is a little disturbing), but much more so, that this means Lindsay could have engaged in tons of unethical behavior, affecting dozens of people, even tons for which he was caught and disciplined, and we could never know. Because the law forbids CFI from telling us. Us. Their very supporters.

      How will lifting the restriction on disclosure affect a company that is intent on keeping a bad actor in the fold? They obviously condone it and have no incentive to disclose it so you’ll still never know unless someone involved in the original complaints goes public at which point the law isn’t an issue since now we should be collecting information from the aggrieved parties not some obviously biased amorphous entity that appears to condone it. Once that case is proven then you can deal with the company being complicit.

    • says

      Apart from your last question, everything you say is all well and good, but is besides the point.

      I will repeat what I said elsewhere in this thread:

      False claims are already illegal.

      It’s no harder to sue for libel than it is to sue a company for violating this law, so this law affords zero advantage there.

      Thus, we are only talking about telling the truth. If a company has no evidence to back a claim it made to dismiss an employee that fact in itself should be on record (and it would then only be illegal to lie about it).

      What is wrong is concealing the facts as they are. I am not talking about companies pretending to have documentation they don’t, for example.

      And the reasons it is wrong to conceal the facts as they are are all those I extensively lay out in my article.

      (I am also not talking about claims that resulted in no finding or discipline–except when one party goes public with them, then a company should be free to discuss what it knows.)

      As to your last question:

      How will lifting the restriction on disclosure affect a company that is intent on keeping a bad actor in the fold? They obviously condone it and have no incentive to disclose it so you’ll still never know unless someone involved in the original complaints goes public at which point the law isn’t an issue since now we should be collecting information from the aggrieved parties not some obviously biased amorphous entity that appears to condone it. Once that case is proven then you can deal with the company being complicit.

      This is precisely the problem. If a company refuses to discuss facts, then we know they are hiding something. But when they can say the law compels them to refuse to discuss facts, we cannot know if they are hiding something or not. This law therefore makes it impossible for us to identify complicit companies. It essentially turns all businesses and schools and charities into Schroedinger’s Catholic Church.

    • JSC says

      Wait, I wasn’t paying attention to the specifics of this case. Is the accused actually also the spokesman for the company and hiding behind the law? If so that’s disingenuous and rather slimy. As the accused, he should be able speak publicly as himself (though not as a representative of the company) now that the accusation and accuser are public. Any lawyer would probably advise him not to, however, for various reasons. He has no obligation to do so, of course, but not doing so tends to make you look guilty. Hiding behind this specific law doesn’t really help him any as far as I can see — it’s a weak excuse at best.

      I’m not a supporter of CFI (I never paid much attention to them to be honest) but if I had been, I’d wash my hands of them now just over the poor handling of the situation even without a final verdict on what happened.

      I still don’t see what having CFI weigh in officially would help, though, in a case where it appears that the organization may very well be corrupt. There’s not even a shred of hope they’d be unbiased. They won’t say anything useful even without the law and outside of a courtroom they can’t be compelled to. Attorneys will probably advise them against any public statements for fear of contaminating any possible legal actions. The best you can hope for is they bow to pressure when people pull their support or that someone mounts a successful case against them. Several other rights and laws come into play here not least of which are the right to remain silent and right against self-incrimination. CFI will probably need a whole team of lawyers to navigate all of them if they persist in standing behind the guy.

    • says

      Wait, I wasn’t paying attention to the specifics of this case. Is the accused actually also the spokesman for the company and hiding behind the law? If so that’s disingenuous and rather slimy. As the accused, he should be able speak publicly as himself (though not as a representative of the company) now that the accusation and accuser are public. Any lawyer would probably advise him not to, however, for various reasons. He has no obligation to do so, of course, but not doing so tends to make you look guilty. Hiding behind this specific law doesn’t really help him any as far as I can see — it’s a weak excuse at best.

      I’m not sure what you mean by “the spokesman for the company.” He is an employee who serves various roles (including as an editor for their flagship magazine, and he occasionally contributes as an author to that magazine and as a CFI blogger…in the latter one might consider him “a” spokesman for the company, likewise when he officially represents CFI as a speaker at conferences, etc.).

      As for Radford’s legal situation, I do not know enough to comment. So far as I do know, yes, he could speak publicly about this, and may yet do, but he might also be weighing other options. I don’t put too much weight on someone’s silence in his situation (because there can be all kinds of reasons for it), but it does carry a little against him.

      I’m not a supporter of CFI (I never paid much attention to them to be honest) but if I had been, I’d wash my hands of them now just over the poor handling of the situation even without a final verdict on what happened.

      The question yet to be determined to any satisfaction is to what extent they are disputing Stollznow’s account of how Radford treated her. So far they have only disputed minor peripheral facts that have no bearing on that question.

      I don’t see a way out for CFI, but I’m willing to give them some time just in case they do. But it is becoming increasingly difficult to trust them. And the fact that New York Law essentially makes it impossible to trust any charity there only makes this regrettably worse.

      I still don’t see what having CFI weigh in officially would help, though, in a case where it appears that the organization may very well be corrupt.

      Oh, yes, granted. If CFI is corrupt. But that’s precisely the question, isn’t it?

    • JSC says

      False claims are not illegal in most contexts. Libel is illegal but has to be both *public* and defamatory. Lying under oath, sure. Lying on contracts as well but that’s either just triggers some clause in the contract or is lying under oath depending on if it’s a private contract or something with the government.

      Aside from this law, though, it’s not illegal for one employer to badmouth you to a prospective employer in a private one-on-one conversation during an employment history or reference check.

      That also means they can say they found no grounds for the complaint without any fear (other than potentially hurting their case in a later lawsuit IF there’s some way to document otherwise that hasn’t been destroyed) and won’t be covered under your limitations of what needs to be reported.

      “The company”‘s opinion wouldn’t help you. It’s worthless no matter what. They aren’t going to admit to anything without being compelled legally or financially. They’ll say they can’t comment because of privacy issues, pending litigation or simply refuse to comment. None of which ACTUALLY tell you anything about whether or not they are complicit regardless of what people usually assume. Using this law as a shield may make them look guilty (or less guilty than if they said no comment) but it doesn’t in fact say anything at all about their guilt. It is almost never in your best interest to say anything publicly if a lawsuit or criminal charges may be on the way whether you are guilty or innocent.

    • says

      False claims are not illegal in most contexts. Libel is illegal but has to be both *public* and defamatory.

      In general that’s a good point. One could justify creating a law that makes libel more strictly enforcible when committed by an employer, for example. That would not be unjust (and would even make sense, since the harm is implicit and greater in a way it is not coming from just anyone else).

      Except for what you said about libel having to be public: that is not true in California, for example. Thus, “it’s not illegal for one employer to badmouth you to a prospective employer in a private one-on-one conversation during an employment history or reference check” is definitely not true where I live. That is definitely illegal, and actionable. (Provided it actually is libel; and the prospective employer who was told those things could be compelled to testify to the fact.)

      That also means they can say they found no grounds for the complaint without any fear…and won’t be covered under your limitations of what needs to be reported.

      I’m not sure what you are referring to. I don’t see any reason they couldn’t say such a thing…except for this mysterious law that CFI keeps citing at me (and even then I’m not sure…since it appears Radford was found guilty by the investigation, and definitely appears to be guilty as the witnesses are stacked against him even on record now, obviously CFI can’t say “they found no grounds for the complaint,” because that would be untrue; so whether this law would allow them to say it if it was true is unknown to me).

      It is almost never in your best interest to say anything publicly if a lawsuit or criminal charges may be on the way whether you are guilty or innocent.

      Except when it will lose you all your donor support and all your goodwill in the very community you serve (and can’t survive without serving).

      Indeed, it’s worse than that. Because if they can blow a ridiculous $40,000 just investigating this claim (even though a mere $2000 of inquiry would have sufficed, given the small amount of witnesses and material evidence there was to examine), but are scared now of a lawsuit that they would win, that speaks to incompetence at CFI. So really, it’s their death knell. Unless they do something really remarkable to stop the avalanche.

    • JSC says

      Oh, yes, granted. If CFI is corrupt. But that’s precisely the question, isn’t it?

      It IS the question. But nothing about the law ACTUALLY makes any difference to whether or not you can answer this question. At best it’ll move one of many bayesian inputs by a fraction of a percent while making it dramatically easier for employers to wreck careers for their own reasons.

    • says

      The law makes it impossible to know. Again, it turns CFI (and every charity in NY) into Schroedinger’s Catholic Church.

      No amount of Bayesian reasoning can escape a situation of legally compelled absence of information. You certainly wouldn’t buy a car this way. “Oh, there can be a thousand things wrong with this car, it could be completely unsafe in every way, but everyone is forbidden from telling you, so you can’t ever know. So will that be cash or charge?” If you could thoroughly examine and test a thousand cars from that salesman, maybe you could get around that. But this law prevents us from even doing that (we don’t ever get to look under the hood of CFI, even after we’ve paid our cash).

    • EnlightenmentLiberal says

      Slight nit.

      False claims are not illegal in most contexts. Libel is illegal but has to be both *public* and defamatory.

      My understanding of US libel and slander law is that the claimant needs to show three things: 1- The communication significantly harmed his reputation (esp. for future employment and a couple other things). 2- The communication is false. 3- The accused knew it was false and published it anyway (or the accused demonstrated a reckless disregard in determining whether it was truth). The above quote misses the third prong which is AFAIK an important part of most libel and slander in the US.

      Of course, my understanding is the situation is drastically different in other western countries. Thank goodness for the US first amendment, and fourteenth, and relevant case law!

    • says

      Right. Like I said myself, the requirement that it be “public” is not the case in California. It doesn’t have to be public. It just has to do harm (and accusations of criminal conduct are statutorily harmful, i.e. you don’t even have to show harm in that case, it is legally presumed), among the other things (e.g., as you point out, public figures also have to show malice, which doesn’t mean mere intent to harm or merely hating someone, but some kind of actual disregard of the truth, and that’s actually the hardest element to prove, and one of the reasons I prefer US defamation law over that of many other countries). Note that non-public figures don’t have to meet that requirement (your third listed; that only applies when the plaintiff is a public figure).

      (Or so I understand it. This isn’t legal advice, just a citizen’s understanding of the law he is subject to.)

  2. Pierce R. Butler says

    … only Popes ban people for being ethical …

    Tell that to Edward Snowden.

    Meanwhile, please consider how leaving such issues discretionary might be abused by unscrupulous employers: this law probably came about through a series of injustices no less appalling, and for which no optimally-balanced remedy could be found in Albany or anywhere else.

    • says

      Which would make this the wrong solution to the problem.

      (Re: Snowden, he actually did break the law. The issue is not whether he did that, but whether he should be pardoned. There is no analogy here.)

    • says

      Richard, I’m not sure there is no analogy. The statement implied about Snowden was that he behaved ethically, not that he didn’t break the law. Since you believe (rightly) that moral facts exist naturally, it seems you are committed to agreeing that what is ethical / unethical can not be simply defined into being by the writing of laws. Are Putin’s new homophobic laws the definition of ethical behaviour?

      Something of a tangent to the main thread, but an important point, I think.

    • says

      The statement implied about Snowden was that he behaved ethically, not that he didn’t break the law.

      The law requires him to stand trial. Ethical behavior or not. So there is no “banning” here. Snowden is just being sought for trial (and thus is self-banning himself to avoid a trial). This is simply not analogous to the point I made about Pope-like behavior. The most one could argue is that the President (the only one who has the constitutional authority to do this) should pardon him, or that Snowden should accept the jail time coming to him as many a conscientious violator of the law has done before him. Neither is analogous to creating ban lists or excommunications.

    • says

      I see it a little differently. If it can be argued that Snowden acted ethically, and if the the US government seeks for people acting as Snowden is thought to have done to face unpleasant legal consequences, then it can be argued that the US government is effectively banning ethical behaviour. A ban on a person, if that means anything, would seem to be a restriction of their freedom, which is what the US government seeks for Snowden.

    • says

      That would be the same thing as this New York Law banning ethical behavior.

      That is a legislature voted into power by the people. That’s democracy, not papacy.

      People have the wrong idea that democracies always do the right thing. Once you get rid of that delusion, there still remains a difference between the people, through their democratically elected representatives, making Snowden a criminal, and the President simply unilaterally declaring it so.

    • says

      The statement originally called into question was:

      “only Popes ban people for being ethical”

      You can’t make that true by arguing that there is a difference between presidents and the people that elect them. As long as there is some entity other than a pope banning ethical behaviour, then the statement is wrong. In itself, this is a trivial point – the statement loses little of its original rhetorical impact – but to say there is no analogy between the highlighted behaviour of the US government and the highlighted behaviour of popes, without denying Snowden’s ethics, looks to a casual observer to be going too far to defend a preferred world view. The only thing that can determine whether or not there is an analogy is whether or not Snowden acted ethically.

    • says

      I think the context obviously makes clear I was talking about individuals, not democracies.

      And Snowden hasn’t been banned from anything or excommunicated from anything (he is still a US citizen, he is still allowed to come home, and he is still presumed innocent until tried by a jury of his peers, under the rights the Constitution affords him).

  3. geekoid says

    How do you know you have been blacklisted, exactly?
    oh, you have documents you’re not sharing. gotcha.

    I met a guy at camp that had proof bigfoot was real too. His because was the government would kill him, if he showed anyone, what’s yours?

    The laws you refer to are their to protect people from company bad mouthing employees, out of spite, or to keep them from leaving. Something that used to be rampant.

    The only way to deal with it is to gather evidences and see the employee get their day in court. If they are found guilty, it will show up when they go to get a job.

    Employers won’t do that and THAT’S the failing. You can’t go around treating people as guilty until prove them selves innocent. well, you can, but history has shown us that attitude goes to very bad places.

    As an Atheist, I am concerned about employers talking about that, or using it to show that ‘Dirty Atheist’ what for.

    • says

      Yes, I have documents. And eyewitnesses. I will produce them if he is foolish enough to sue me. Until then I’m not going to make it easy for him to punish other people the way he tried to punish me.

      “Bad mouthing employees, out of spite, or to keep them from leaving” is already illegal: that’s called defamation (libel/slander). Likewise punishing atheists for being atheists is against the law in many states (and ought to be in all of them).

      You don’t seem to grasp how the world works when it comes to determining facts and acting on them.

      Courts of law are not the only places facts are ascertained. It’s not as if scientific studies have to present in a court of law before being stamped as approved, or that historians or journalists can’t publish without presenting their evidence in criminal court first, or that employees can’t be disciplined without a full legal trial. Courts of law exist only for the extreme cases of legally violating human rights (in the US that means forcibly imprisoning or pressing into labor the convicted, or taking money/assets from them without their consent, which is the function of fines and civil trials). If that is not the remedy you are seeking, there is no need of a legal trial. You can present sufficient evidence to establish what facts were verified and how, or describe how far short the evidence you have comes from proving something, and so on. Legal trials are not needed.

      Indeed, being incompetent at your job and being disciplined for it (e.g. for workplace negligence) is generally not even illegal. But it is certainly demonstrable enough for employers to punish it when they see it, and to tell future prospective employers who ask about it. “This guy is applying to do be a mechanic here. Is he a good mechanic? Is he a trustworyhy employee?” — banning someone from answering those questions is perverse; it’s a subversion of the very purpose and idea of free speech, and of justice, and of economic rationality.

      And as for demonstrated incompetence, so for unethical conduct (dishonesty, bullying, harassing, or, for example, a strong suspicion of stealing or fraud based on piles of circumstantial evidence not sufficient to convince a jury on any single case but coming up in so many cases as to defy probability, and so on).

      Case in point: If a priest behaves very inappropriately with children, with lewd comments and communications and unnecessary (but not yet explicitly sexual) touching, and an attempt to conceal all this, and does this a lot, it might not cross quite into being a crime. But it is certainly information a future parish he is shuffled off to should be told. Even the very fact that it was bad enough to warrant shuffling him off to another parish is evidence enough it was significant.

      Courts cannot deal with this. Documenting and reporting the facts of the matter can. The entire fourth estate is premised on that distinction.

  4. Andrew Martens says

    It would be interesting to read the exact law in question to see what language it uses. While employers may not be allowed to acknowledge whether there were problems with an employee, could they not at least acknowledge the lack of problems with an employee?

    Consider these two exchanges of a prospective employer checking up on a reference at a previous employer:

    1. “Has Person A ever been involved in disciplinary action at Previous Company?”
    “No, of course not! Person A was an exemplary employee!”

    2. “Has Person A ever been involved in disciplinary action at Previous Company?”
    “By law, I am unable to comment on whether or not Person A was ever involved in any disciplinary actions at Previous Company.”

    While employers may not be allowed to say anything negative about past employees, if one’s employer is allowed to – but unable to – say anything good about them, then a prospective employer could read between the lines.

    That does, of course, only help in regards to providing employment references, and isn’t helpful in the case of groups being accountable to their members/congregations.

    • says

      That would only be useful if everyone knows the coded communication procedure, and if everyone knew it, it wouldn’t work (the “code” would just automatically be identified as a “yes”; if the code doesn’t necessarily mean “yes,” then it effectively means nothing, and so can’t do the work intended here; also “yes” is way too vague to be useful–it conflates the serious with the trivial, ethics with competence, early career with late career, and so on).

      Likewise, as you note, the public accountability issue is not thereby solved. I shouldn’t have to ask CFI every quarter a convoluted coded question in an attempt to ascertain if the competence and ethicality of its employees has become problematic…they should be obligated to tell us if there are such issues and they aren’t being dealt with. And for the same reasons I just noted, a “convoluted coded question in an attempt to ascertain if the competence and ethicality of its employees” would still be useless (since yes/no answers are meaningless, even if we could trust them).

  5. Al Dente says

    Lindsay appears to be proving Lord Acton’s comment about power corrupting. Lindsay has some power and he’s using it in a corrupt manner.

  6. says

    Richard, it looks like Lindsay probably violated this law by officially, publicly corroborating Karen’s story as the CFI president. Specifically this:

    2. The employee referenced in Ms. Stollznow’s blog post did not serve his suspension during his vacation; and

    Posted this on Lindsay’s blog (thanked him for corroborating Karen’s story!) and over on PZ thread for the same:

    http://freethoughtblogs.com/pharyngula/2013/08/12/are-we-having-fun-yet/comment-page-1/#comment-667425

    • says

      BTW, this is in reference to Lindsay releasing his letter to Scientific American to make corrections (SciAm pulled the article instead, although possibly only temporarily).

      For a mirror of the original article and a link to and my analysis of Lindsay’s letter see here.

      And you are right, Lindsay essentially just admitted the accused suffered a suspension and that it was for more days than his vacation (one? two? twenty? without pay?), which does appear to violate the law in the way they’ve suggested to me, although only just barely. Perhaps he is hoping the fact that he doesn’t himself name the accused (even though he is named in the articles Lindsay’s letter links to) will shield him. But if that were the case, they could just disclose the entire final disposition of the case, and just leave off the names.

    • says

      I take issue with characterizing Lindsay as “pretty fucking scary.” Having met people who actually are pretty fucking scary, I must curb such hyperbole in this case. I think Lindsay is a bit arrogant, irrational, and drunk with power, and doesn’t sympathize readily with other people or perspectives not his own (CYA is his default mode and getting him out of it can be like pulling teeth). But he’s not even close to as bad as Thunderf00t, for example (who does actually scare me), and certainly nowhere remotely as bad as an actual criminal, mob boss or tyrant. I would dare say DJ Grothe now worries me considerably more than Lindsay, if Carrie Poppy’s account is heeded; and my greater worries about R. Joseph Hoffmann I have remarked upon many times before (e.g. here).

      I don’t personally believe Lindsay is fit to be president of CFI. We could do better. But he doesn’t scare me.

  7. says

    Hello Richard, I’d have one question.

    Do you believe the evil of the roman Catholic pedophilia scandals is a natural consequence of their supernatural belief system? (if there might be such a thing ;-) )

    Or is that the consequence of an authoritarian power structure which might be supernatural but also secular (like in Russia)?

    As a non-denominational Christian, I definitely belief the second possibility is much more likely to be true, and I find it refreshing that most modern Catholics in continental Europe rejects Biblical inerrancy and the genocidal god many Evangelicals are worshiping.

    The abuses having taken place there are tragic for sure, but the sincere apologies and shame of the Church’s leaders and of the overwhelming majority of its members show me it is still a place where I can be in good conscious.

    The same can most likely be said of the CFI, almost everyone within it is horrified by what happened, so the scandal smears only slightly the organization, at least for people knowing assholes exist everywhere.

    To your mind, how likely is it that efficacious internal laws will be voted within the center to prevent it from occurring again?

    Kind regards from Germany and good luck in all your effort to better things.

    Lothars Sohn – Lothar’s son

    http://lotharlorraine.wordpress.com

    • says

      This is way off topic. But I’ll answer since it’s come up elsewhere a few times.

      Do you believe the evil of the roman Catholic pedophilia scandals is a natural consequence of their supernatural belief system? (if there might be such a thing ;-) ) Or is that the consequence of an authoritarian power structure which might be supernatural but also secular (like in Russia)?

      More like the latter–or rather, the extraordinary sense of privilege they have and are given by the public, their sense of being the end-all-be-all of the universe, their extensive corruption of power, their engineered isolation from the general public, and so on, but these factors only made the problem more extensive and led to its being concealed for so long. Likewise when you factor in the suppression of human sexuality (that priests can’t have sexlives, even via marriage, is a major contributing factor).

      But other churches without these features have also had similar scandals, just not as pervasively. Which brings it all down to really just one thing: the social position gullible believers assign to priests/pastors. Unlike any random official in Russia, say, priests are given almost unfettered access to children and youths and bestowed with exceptional awe and trust and instinctively defended against any accusation, a circumstance that actually attracts predators into exactly such a position, yet makes people unusually blind to their presence.

      This just got amplified a thousand times in the Catholic Church by its other contributing factors.

      And this one key factor is in part a result of supernatural belief systems, but not as a necessary cause–secular belief systems could similarly generate the gullible excess of trust and blindness (we see a little of this in the way certain atheists have been all but “sainted” and are instinctively defended against any accusation, but really only a minority of atheists are acting that way). But I think supernatural belief systems will do this more often because they by nature suppress or require suppressing skepticism, independent thought, questioning of authority, and other cognitive traits that would normally help minimize such risks.

      To your mind, how likely is it that efficacious internal laws will be voted within the center to prevent it from occurring again?

      No idea. I doubt this New York State law will get changed in any helpful way, but that’s just my innate political cynicism.

  8. says

    I wish Iowa had a law like this. Employers fire people all the time with no good reason and without protections, can effectively make any long-term employee unemployable. Yes, sometimes they fire someone for a good reason and it might be good to tell others, but the firing someone for petty personal reasons or instead of laying them off or because someone else did something wrong and they complained is very common. This law keeps the damage contained.

    • says

      Firing people “with no good reason and without protections” is not what this law is about. Having to have reasons, and having to document them, and having protections against unjust dismissals, is all fine. What this law is about is not that, but the concealment of verified or documented unethical behavior and incompetence from the public and the economy.

      Remember, false claims are already illegal (it’s no harder to sue for libel than it is to sue a company for violating this law, so this law affords zero advantage there). Thus, we are only talking about telling the truth. If a company has no evidence to back a claim it made to dismiss an employee that fact in itself should be on record (and it would then only be illegal to lie about it).

    • JSC says

      It’s rather a lot harder when you can’t find out about it. Employers won’t open themselves up to liability by telling you why they won’t hire you. You just didn’t get the job. And if you are unemployed, you are lucky to be able to feed yourself and put gas in your car so you can go to interviews much less file a lawsuit against a former employer. And again, you’ve not been found guilty by any unbiased neutral 3rd party like a court (is supposed to be) yet you are being asked to prove yourself innocent at the worst possible time and suffering significant financial damages at the whim of former employer.

    • says

      Which is what libel laws are for. Indeed, that’s very much especially what they are for.

      Remember, a company can do that anyway. It’s a violation of the law either way (either a libel law or this draconian silencing law). Thus, you are screwed by a violation of the law either way.

      So the question is: which law would we rather have such an act be a violation of? The libel laws? Or this silencing law?

      The costs of litigating are the same for a victim either way, so it makes no difference to them.

      So really, the silencing law only serves to protect the guilty. Unlike a libel law, which aims to protect the innocent.

    • JSC says

      But it isn’t libel. It *might* be defamation under certain circumstances and in certain jurisdictions but definitely not if the party giving the information is only reporting what third parties said — i.e. an HR person divulging statements or their judgement of said statements privately to another individual. Reporting privately that there was a complaint of a specific type and that you took action or didn’t isn’t defamation and since the company is neither qualified to make such judgement nor unbiased, it has no business making those statements.

  9. says

    I would have thought that, in the Dr. Stollznow example, that CFI would have kept at least a bit of credibility if they had told her they were legally prohibited from sharing the report results, rather than just saying it was their policy.

    • says

      Do note that semantic quibbles over exactly what they said (did they say “policy” or “law”? were they vague? did they say different things at different times?) should probably be assumed and avoided. So I wouldn’t hang much on such a detail.

      Certainly it appears they could have (and should have) made this perfectly clear (note that they have not actually made this clear even to the public: I am only getting this law cited at me in backroom conversations; even their one public communication about this makes no mention of this law being in the way, they give an entirely different excuse instead, one that actually doesn’t make sense in this case, as I pointed out in my last article).

      Of course, maybe they did and Stollznow didn’t think to include that detail in her account, or didn’t realize her being ambiguous about it could be a problem, and so on. So again, a little caution is warranted. But yes, judging from their public communications, it’s looking more like they aren’t handling this correctly. If they can’t even think to tell us the law is binding them, odds are they didn’t tell her either.

  10. gwen says

    I think California has the same non-disclosure laws.
    And I have to say to Dr Linsay, paraphrasing Inigo Montoya–I don’t think zero tolerance means what you think it means. Ben Radford still has his job. In my workplace, he would have been summarily dismissed.

    • says

      That’s a good point. What exactly does zero tolerance mean to him?

      I can imagine he thinks “all cases will be disciplined somehow” rather than “all cases will result in dismissal.” But that’s the same as “will be tolerated a little,” which isn’t zero.

  11. davidjanes says

    I just want to throw in generally that this may not be a law in New York – it may be instead generic legal advice due to a large number of defamation lawsuits that have been filed, and won, by employees for bad references or other public statements. In my experience, lawyers like to deal with potential questions of favoritism or retaliation by recommending blanket bans on certain areas of conduct. The idea being that by having a bright line of What Is And Is Not To Be Done Always, you make defenses of such claims easier.

    If it is the case that this is not enshrined in a privacy law designed to protect employees from employer blacklisting, it is going to be much, much harder to get rid of (even if it should be, which frankly is debatable). If it is a successful legal strategy, competent lawyers are going to continue to recommend its adoption in perpetuity.

    • davidjanes says

      And by “large number of defamation lawsuits filed and won” I want to be crystal clear that I am speaking of such cases across the state against multiple companies, both for-profit and non-profit, not against CFI or non-profits specifically.

      The role of most attorneys is to keep their clients out of the courtroom in the first place, believe it or not. At least in my experience.

    • nathanaelnerode says

      It is not an actual law. It is, as davidjanes says, “lawyer practice”.

      Bad practice, as it happens, but davidjanes is correct: “In my experience, lawyers like to deal with potential questions of favoritism or retaliation by recommending blanket bans on certain areas of conduct”.

      It’s bad advice in many of the instances where lawyers recommend it; it actaully leads to gross mistakes, other lawsuits, and even crimes; but they WILL keep recommending such over-the-top “blanket ban” reactions.

    • says

      The “actual law” is New York defamation law which lacks statutory protection for employers.

      If this is the law that CFI is hiding behind (and that link does not establish it is; remember, that article only talks about NY defamation law, not employee privacy law), then one can say they are engaging in a necessary legal protective behavior because even true statements are not reliably protected from defamation suits in New York. Or so it would seem. (See comments elsewhere in this thread for other ways to look at it.)

      But if this is not the law CFI is hiding behind, but some other, then this is moot.

    • nathanaelnerode says

      Take this with a grain of salt because this is based on what I remember from second-hand information about other cases quite a long time ago.

      In New York, provably true statements are protected from defamation suits etc., just as in the rest of the US. HOWEVER, when an employee sues, it seems that in practice, the burden of proof ends up being on the employer, and the standard of proof is high. (Regardless of what the burden of proof is supposed to be legally.) So lawyers always advise employers not to say anything unless they’ve got a stack of sworn affadavits, which of course rarely happens.

    • says

      Something like that does seem to be what’s the case (see discussions upthread). No one has confirmed that that is the law CFI is referencing, but it’s a good candidate.

  12. Reginald Selkirk says

    an “ignorant blowhard,” two adjectives I then supported with evidence

    Isn’t blowhard a noun?

  13. satansparakeet says

    The laws of New York State are publicly available online (http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS) and while it’s possible I’m missing something, I don’t see any prohibitions on reporting disciplinary actions taken on your employees. I think CFI is full of crap on this and I will continue to think that until they can point us to the law that they think applies.

    That being said, it IS a common HR practice to prohibit supervisors from discussing the past performance of employees unless those employees specifically allow the supervisor, in writing, to discuss their past work history. This is a total ass covering move by HR so that former employees can’t sue you for jeopardizing their future employment prospects.

    In any case, even if this law exists in New York that specifically prohibits disclosure of disciplinary action, nothing would stop Ron Lindsay, or anyone else, from waiving that protection and allowing the public access to those records. If Lindsay really wants to restore people’s confidence in CFI he should immediately open up his own HR file and ask Radford to do the same. Unfortunately, that’s incredibly unlikely to happen unless their records are much cleaner than we’ve been lead to believe.

    • says

      Any state legal code is vast and complicated, so it’s really hard to say what “isn’t” in it without consulting a lawyer.

      It’s possible that this is just “legal advice” and not really a law. I noted that possibility in the article, early on: and asked that people who know either way report about it here. That still stands: if anyone really knows what the truth is here, please weigh in.

      It’s also possible (and this is me being charitable and assuming I’m not being lied to) that it is legal advice that was framed in such a way that non-lawyers heard it as a legal requirement.

      It’s also possible that it is legal advice that was deliberately framed in such a way that non-lawyers heard it as a legal requirement. If, for example, the CFI board is being advised on this by Ron Lindsay…a lawyer. (Although there is at least one other lawyer on the board, he practices in California, not New York, so far as I know.)

      At the very least, I hope my article will flush out the truth either way. If there is no such law, then someone has been duped (either me, or the CFI board of directors). The question then would be: who is the liar responsible for that?

    • says

      That’s the wrong law. That’s about defamation indemnity. That pertains to companies lying about you. Not to companies telling the truth about disciplinary actions.

      However, the web article you link to does corroborate one possibility: that there is no law preventing disclosure, but only a fear of defamation for disclosure because, unlike most other states, New York law (sometimes) doesn’t protect employers even when they make truthful claims (the question hangs on what NY law defines as “privileged” information, which may well include disciplinary history). That article even points out the injustice of this and why New York should get in line with other states and remedy this injustice. Indeed. Exactly my point.

      Explicitly:

      New York is one of the few states that doesn’t have any statutes specifically regarding references. Most states have passed laws giving employers legal immunity from defamation lawsuits – in other words, the employer is not subject to liability and cannot be sued — for information they provide to prospective employers, as long as the employer speaks honestly and doesn’t go beyond the specific types of information laid out in the statute. … New York doesn’t offer this kind of protection, however, which means that employers in New York aren’t statutorily protected from defamation claims.

      It is possible this is the very law CFI is hiding behind. So in fact, you may have found the actual law I’m talking about (rather than the reverse).

    • says

      Richard,

      I disagree somewhat with your interpretation. I’ve handled defamation cases before, though not in New York. The Nolo article points out that, in many states, employers are protected from defamation claims when they give out employee references. See, e.g., Pennsylvania. In PA, employers are presumed to be acting in good faith, and cannot be sued unless the former employee proves by clear and convincing evidence (a higher standard of proof than usual) that the employer did not act in good faith.

      The New York page merely states that New York does not have such a law. What this means is that employers in New York can be sued for defamation if they give out false or misleading information about former employees. CFI may be hiding behind their potential liability, but their liability, as an employer, is no greater than anyone’s liability. They are liable to the exact same extent that you or I (or Stollznow, for that matter) is liable for public statements.

      I also think you’re misunderstanding the reference to “privilege”:

      Generally speaking, an employee must show all of the following to win a defamation claim based on a reference:
      [...]
      The statement was not privileged. As mentioned above, many states have laws that provide immunity for
      employers who provide reference information. These are sometimes called “privilege” laws, because their purpose is to protect people who make certain types of statements from liability, in order to ensure candor in certain relationships and transactions (such as the marital relationship or the relationship between doctor and patient). However, New York does not have a statute providing this type of protection.

      Privilege, in that context, is a defense to defamation, not an element. In other words, in order to avoid liability for defamation, CFI could claim that their statements about Stollznow were privileged, though obviously, that wouldn’t really apply in a case like this.

      The bottom line is that if CFI is claiming that they are legally prohibited from giving out information about Stollznow, they are lying.

    • says

      And that’s what worries me.

      It is my hope that my article will do something to flush out the truth in this matter. As I noted elsewhere in this thread, who is the dupe, me or the board of directors? Who is lying? The board or their legal counsel…or President: Ron Lindsay. Inquiring minds need to know. The future of CFI hangs on it.

    • says

      At best, I think, CFI could be saying that commenting on the work of former employees opens them to liability if the wrong thing is said (which is true enough), so company policy is to only give out dates of employment. But that does not seem to be what CFI is claiming.

      Unless I’m missing something. You said that multiple sources have confirmed that your understanding of New York law is correct. Nolo is usually spot-on, but they could have made a mistake. Maybe you could ask your sources for a citation to a statute or case? Give me a citation and I’d be happy to look it up.

    • says

      You said that multiple sources have confirmed that your understanding of New York law is correct.

      Read the comment thread above. This gets discussed and possibilities are raised as to what law they might actually be referring to and how much might be CFI engaging in CYA. Not a resolution, but it suggests there is uncertainty as to just what exactly the law requires vs. necessitates. Although the outcome is the same, and CFI is hiding behind it either way.

      Certainly I’d love to have the law identified (that’s why my article asks people to ask and find out).

  14. b. - Order of Lagomorpha says

    Since most corporations (including non-profits) have at least some form of regulations against sexual harassment, why doesn’t Lindsey just pony it up for everyone to read? Surely, it’s not something top-secret if it’s something every employee has to sign and abide by. The state agency I worked for spelled out what constituted sexual harassment and spelled out what penalties were possible, as did the non-profits I’ve volunteered for, as has every other job I’ve had. Why not say, “Hey! We’re justly proud of our sexual harassment policy. Here it is; read it for yourself.” Why all the weasel-words and obfuscation?

    • says

      The Conference Policy (which is what Stollznow evidently actually had in mind, rightly or wrongly) is a matter of public record on their website (policy here which is extensively explained here).

      I don’t know if their in-house policy is online somewhere, but it is supposedly similar to this one (and in place since 2007, according to Lindsay; the one above went into effect in 2011, and the one in 2007 updated an older policy instituted in 2003).

      I wouldn’t assume the in-house policy isn’t available online (I just don’t know the URL if it is).

  15. Justin says

    Richard, you say a couple of times, words to the effect that “it’s no harder to sue for libel than it is to sue a company for violating this law [i.e. a silencing law], so this law affords zero advantage there.” This might be right in the limited sense that the costs for filing fees are the same or somesuch. But of course there’s a very important sense in which it’s harder to sue someone for being loud *in*a*particular*way* than it is to sue them for being loud *at*all*. It’s much harder to prove libel/defamation than it is to prove mere failure to remain silent, so in that sense it’s much harder to (successfully) sue someone for the former than the latter.

    Of course this leaves open the question of whether libel laws might still serve (well enough) all the legitimate purposes of silence laws, even though (successful) lawsuits are surely much harder to bring in the case of libel than they are in the case of non-silence. I see how silence laws can do a better job of protecting employees from personal vendettas and the like, but I also see that they cause problems due to opacity, e.g., in the ways you discuss… It’s a really tough question just what sorts of employee information it would be best to allow employers to publicize — no obvious answers here.

  16. chrisdevries says

    This law disturbs me too, but I have two comments:

    First, while results of disciplinary proceedings cannot be shared with the public, I am not sure that the law prevents employers from mentioning that there have been disciplinary issues (without going into specifics about the process or its results), or that they personally are aware of unethical behavior (without saying exactly what the nature of this behavior was). This may be a bit of a gray area, or for all I know, I’m wrong and the law prevents an employer or former employer from saying anything at all about the employee’s ethical inadequacies to anyone, ever. Like you say, what would be the point of a job reference if the employer cannot provide any information on the strengths and weaknesses of the job candidate?

    Secondly, while CFI may be prohibited from sharing details of an investigation, there is nothing preventing YOU (or any other victim) from notifying the public and CFI members that their president is a douchebag. If a crime was committed, criminal proceedings would be initiated and the matter would be on public record, but even if the behavior didn’t rise to that level, by sharing your story, you can make people aware of the behavior. Similarly, if someone working for CFI was harmed and they (or a whistleblower who is aware of the infraction) felt that the internal investigation was inadequate, there is nothing preventing them from going public as an individual (and not as a representative of CFI). In doing so, that person could warn those future victims, shame CFI, and the pressure might get to the point where CFI terminates their association with the perpetrator. As long as their allegations are true, there is no libel case. And while there would be no details of the investigation available, since the alleged incident is now part of the public record it would be pretty obvious to any prospective employer who Googles the name of the perpetrator why he was let go (or forced to resign). The whistleblower or victim’s job might be threatened, but just as the company is prohibited from discussing the disciplinary process of the original perpetrator, they would be barred from smearing the victim’s reputation with details, real or false, from their own disciplinary process that led to termination. Also, it is unlikely that such an individual would ever provide a prospective employer their vindictive former boss as a reference.

    This law is bizarre and may very well be challenged in court in the future, but while it protects those who engage in bad, but not illegal behavior, it isn’t a very good umbrella. Individuals who are victims of sexual harassment, stalking, or any form of discrimination that their employer knew about and did not attempt to rectify, can certainly claim that their employer violated their human rights by providing a discriminatory work environment. The victim can take the company and the harasser to court (hiring a lawyer on contingency), and hit them where it really hurts – their pocketbook. A process of discovery would be initiated and while it may never be part of the public record, the court would have access to the evidence the company found in its investigation (if there was one) and more. As long as the victim told his/her boss about the violation, the evidence shows the abuse continued beyond the time the company knew about it, and the plaintiff can prove they were harmed (not difficult), the company is liable. If the company took inadequate action and the abuse continued with their knowledge, they’re liable. And depending on the offense, the harasser could possibly be sued as well.

    Truth be told, I think CFI is insane to be standing by Radford, knowing that he may be a serial harasser or worse; any harassment, stalking, or assault he engages in against a fellow employee or against any individual he meets at a CFI-sponsored event from the time they first investigated allegations against him and found them to be true (or partially true) could get them sued. And Ron Lindsay has only dug his hole deeper since this story broke…CFI is due for some major managerial changes, and Lindsay would be my number one termination, were I in charge.

    • says

      …there is nothing preventing YOU (or any other victim) from notifying the public

      But this requires a Snowden to do that.

      And that’s precisely the problem. If we don’t hear about something (as in fact for years we did not hear about this case), is it because there wasn’t any such cases, or there weren’t any Snowden’s willing to go public?

      Schroedinger’s Catholic Church.

      Your last point is spot on. Radford’s endless campaign of harassment (even after repeated calls to back off by multiple parties) has been corroborated by multiple independent witnesses on the record (see links here). This would warrant termination in any other company I know. And Lindsay is still handling this case in almost the worst possible way, rather than the best. It’s more of the same insensitivity and incompetence. It’s not looking good so far.

  17. gwen says

    I just finished reading through the link to ‘Almost Diamonds’….FOUR YEARS??? De Stollznow had to deal with Radford’s crap for FOUR YEARS? Dr Lindsay calls THAT ‘Zero Tolerance’? The only zeros here are in the approximately 1500 days Dr Stollznow had to put up with his harrassment.

    • says

      To play Devil’s Advocate, Lindsay would say that CFI wasn’t made aware of it until near the end of that period, and once they were, they “put a stop to it” (presumably).

      But if I were in his position, I would conclude that if Radford could continue that way for that long even after multiple calls to stop by multiple people (as appears to be the case), then he is not fit to be trusted as an employee and is an embarrassment to CFI and its mission and values and thus should be dismissed, as a matter of principle, public relations, and the basic logic of corporate human resources (“doesn’t play well with others; poses an unacceptable risk to female employees”).

  18. tiberiusbeauregard says

    “They could have been one of the most awful, sleazy, dishonest, unethical people ever to skirt just this side of the law, and I cannot tell them”
    ^
    Don’t be naive. Many countries have such laws and that’s why a “code language” has been established between employers for decades to transfer complete information about employees.

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