Sklover’s Thought for the Work Week

Published on July 21st, 2014 by Alan L Sklover

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“Don’t play what’s there, play what’s not there.”

– Miles Davis

Should you develop skills for today’s world, or the world you believe will be here next year, and the year after that? Should you focus on the kind of business partnerships that others have in place, or perhaps business partnerships no one else has thought of? Even in target practice, people are taught to aim not where the moving target is, but where it will be. Don’t play what’s there, play what’s not there. Yes, yes, yes.

© 2014 Alan L. Sklover. All Rights Reserved

[This great quote was contributed by Marlene T. of Temecula, California. If you would like to contribute a favored quote, saying or proverb, please submit it to us at info@SkloverWorkingWisdom.com].

 

The Future of Work – Anyone Want a Raise Every Month?

Published on July 18th, 2014 by Alan L Sklover

raise monthly
What would motivate you more: A raise once every three years, or a raise once every three months? Did I really need to ask you that question? A recent trend finds employers providing more frequent raises for a good number of reasons. Most of all, it seems to work!

Regardless of business, industry or geographic area, all employers need to attract and retain the best-qualified, most productive and dependable employees. And, so, ways to do just that are always under review. Many employers continually experiment with employee-motivation techniques, from “Casual Friday’s” to “Departmental Adventure Outings” to the old-fashioned “Employee of the Month” awards. Smaller companies, especially, need to find ways of holding on to their “keeper” employees.

A recent trend in employee motivation is to provide more frequent raises, promotions or bonuses. The reasons for this are many. First, studies show that quarterly rewards are an unusual, and attractive, recruitment tool. Second, many believe that more frequent “encouragement” boosts employees’ “Three E’s” - Excitement, Engagement and Effort. Third, the practice of more frequent rewards lets poorer performers know how they are perceived and “where they stand” earlier, and thus provides an impetus to the employee either to correct the shortcoming or to leave, before problems fester.

Employees of Shutterfly, Inc. – the popular internet-based image publishing service based in Redwood, California – are eligible for bonuses four times a year and salary raises twice a year.

Those who work for Epsilon, a provider of loyalty marketing services and programs headquartered in Plano, Texas, receive a salary review every six months for their first two years. The program has become a big selling point when interviewing prospective employees in good part because many recent hires can attest to having won all four of their first semi-annual raises, and at least one promotion, in their first two years of employment.

Quarterly raises of 2% to 15% are the norm for employees of Zulily, Inc., a web-based designer and retailer of clothing for moms, babies and kids, headquartered in Seattle, Washington.

The practice of more-frequent employee “rewards” is not yet widespread. A recent study by benefits-consulting firm Aon-Hewitt of 1,147 companies found that only 5% engage in the frequent-rewards practice. But many think that, if it works, it will be seen more and more, as the competition for top-notch talent, attitude and engagement intensifies, which it most surely will.

Show your value, and collect the job security and employee rewards you’ve earned. Makes sense to us. In fact, that is what SkloverWorkingWisdom™ is all about.

© 2014 Alan L. Sklover. All Rights Reserved. Commercial Use Prohibited

“Claw-back: If no amount is stated, is it enforceable?”

Published on July 16th, 2014 by Alan L Sklover

Question: My employer has a “claw-back” agreement that extends 24 months beyond my repatriation from my expatriation in China.

While the items to be repaid are defined in the agreement, there is no dollar figure associated with any of these items. Is this still enforceable?

Lee
Shanghai, PRC

Answer: Dear Lee: The simple answer is “Yes,” but the best answer is “Yes, But.” Please remember that difference while I explain:

1. It is not at all unusual to find a financial obligation described in words without a corresponding amount set forth next to it. This is most often the case because, at the time that the agreement is written, the amount of the obligation has not been determined.

As one example, if your employer is entitled to “claw back” from you the value of any stock grant given to you if you should leave the company within 24 months of your repatriation, at the time of the agreement no one might have known the value of any such stock grant to be made.

As another example, if the “claw back” is for commissions paid during a certain calendar quarter, or relocation expense, the amount of such commissions or the amount of the relocation costs might not be known at the time of the signing of the agreement.

Look Before You Leap!! Get a copy of our 138-Point Master Guide and Checklist for Employees Contemplating Expatriate Assignments. Everything you forgot to ask about, and for, and then some! To obtain a copy, just [click here.] Delivered by Email – Instantly!

2. In fact, every lawsuit and arbitration has two phases: (i) first, it is determined whether or not a debt or obligation is owed; (ii) then, and only then, is it considered how much that debt or obligation might amount to. Lawyers and Judges call these two distinct stages of litigation (i) the “liability” phase, and (ii) the “damages” phase. And, as might be expected, the “liability” phase of a lawsuit involves “words,” “ideas,” and “concepts,” while the “damages” phase of a lawsuit requires numbers, calculations and simple arithmetic.

Let’s say your car and another car collided. The first question is “Whose driving caused the collision?” The second question is “How much – if anything – does the driver at fault have to pay the faultless driver?”

And in lawsuits or arbitration, it is often more difficult for a jury or an arbitration panel to decide the “damages” (or amount to be paid) than it is to decide the “liability” (or whether or not any obligation exists in the first place.)

3. Remember that, above, I said “The best answer is ‘Yes, but’?” Well, this is why: There are many defenses to “claw back” agreements, in fact, many more than you might imagine. In the law, we have what are technically called “Affirmative Defenses.” This means, quite simply, (i) “YES, I signed that agreement, (ii) BUT there is a good reason (or good reasons) I should not have to pay those monies back.” Hence the title “(i) Affirmative (ii) Defenses.”

Here’s a few of the many, many “affirmative defenses” that may be available to you: (i) YES, I agreed to pay the money back if I resigned, BUT I was really laid off and Human Resources let me tell people it was a resignation. (ii) YES, I did sign the agreement, BUT the reason I resigned was that I was almost raped by my supervisor one evening at the office. (iii) YES, I did agree to repay that money if I left the company, BUT the company required I work in China and my daughter’s asthma doctor told us she could die if we remained in China, so surely I couldn’t do that.”

If you agreed to repay your former employer (a) tuition reimbursement, (b) relocation expenses, (c) a sign-on bonus, or even (d) a short-term loan, you may be able to have that obligation waived and forgiven. We offer a Model Letter for Repayment Obligation Forgiveness – with 18 Great Reasons, just [click here.] “What to Say, and How to Say It.™” – Delivered by Email – Instantly! 

4. By the way, although “claw back” and “repayment” are actually different, they are commonly used interchangeably. Technically speaking, “claw back” refers to “taking back” a payment of money made to you, such as (i) bonus, (ii) commissions, and (iii) leave of absence payments. Technically speaking, “repayment” refers to “reimbursement” of monies paid not to you, but paid to someone else on your behalf, such as (a) relocation costs, (b) tuition reimbursement, and (iii) your legal fees related to, for example, immigration issues.

That said, these days almost everyone uses the two terms interchangeably, and you should not be concerned if you or others use them incorrectly in a technical sense. To my mind, the ultimate test of word use is overall communication not technical accuracy.

5. In my experience, almost every employee has one or two good “Affirmative Defenses” to repayment obligations and, in any case, there is no downside to seeking either forgiveness or negotiated settlement. Claw backs and repayment obligations are good examples of how very “negotiable” employment and employment-related matters are. Employers do not want to spend many thousands of dollars to collect a rather small sum. Nor do employers want to let it get around that employees can – in fact – defeat collection efforts. And, too, some employers understand that you might one day be a prospective customer. This is one area in which I have found employers often negotiate or waiver in their efforts against employees much easier and more quickly than in many other situations.

Lee, thanks for writing in. I hope your employment transition is a smooth one, and that you consider challenging your possible – but not definite – claw back obligation.

My Best to You,
Al Sklover

P.S.: Post-employment, employers might use a Collection Agency to collect sums. To thwart those efforts we offer a Model Letter in response to Collection Agencies. Not guaranteed, but almost always works. Just [click here.] “What to Say, and How to Say It.™” – Delivered by Email – Instantly! 

 Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

Sklover’s Thought for the Work Week

Published on July 14th, 2014 by Alan L Sklover

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“Those who do nothing are never wrong.”

– Theodore de Bouville

I call them “snipers.” Those who take no chances, hide behind the safety of the “bushes,” sneer at others who fall while reaching for the stars, and never accomplish much on their own. At work, they abound, and tend to play a very cautious game. While care, planning and prudence are all valued virtues, when they rise to the level of “sniping” they are corrosive to the common good that needs risk-takers, wild-eyed optimists, and creative geniuses. At work and elsewhere, don’t be afraid to “go for it,” no matter what the “snipers” say from the safety of their “bushes.”

© 2014 Alan L. Sklover. All Rights Reserved

[If you would like to contribute a favored quote, saying or proverb, please submit it to us at info@SkloverWorkingWisdom.com].

 

“After a Complaint, the Employer’s Legal Duties to Separate and Protect.”

Published on July 10th, 2014 by Alan L Sklover

Question: Dear Alan: I am a school central office administrator who wrote a formal bullying/harassment complaint to the School Board against our Superintendent. As a result, the School Board held a special meeting and unanimously decided to hire an Outside Investigator to investigate my complaint.

I took sick leave for a week after filing the complaint due to stress, but now would like to return to work if possible. However, the School Board did not put the Superintendent on administrative leave while the investigation is being conducted.

So, when I go back to work he will still be in a position to bully me, retaliate against me, and make life miserable for me. He is a serial bully and I either had to live with it or do something. I do not want to put myself in a precarious position where things can get worse.

What is your advice on this matter? Request that the Superintendent be put on leave? Request to work from home? Take medical leave?

I love your website and have learned lots from it. Thanks for your help.

Belinda
Layton, Utah

Answer: Dear Belinda: The School Board is doing one half of what the law says it must do. It would be wise to remind it of the second half of its legal responsibilities to you:

1. After receiving a complaint of bullying, harassment, discrimination, hostility or the like, an employer has two legal duties: (a) first, to Separate and Protect, and then (b) second, to Investigate. When an employer is in receipt of a complaint about another employee, the law provides that the employer has two legal duties to the person who submitted the complaint. The first duty – and truly the most important of the two – is to separate the parties to protect the complainant from further possible harm by either (a) more bullying or (b) retaliation for having filed the complaint. It cannot simply wait until it is certain of what took place to fulfill its primary duty to you, that is, to protect you.

Just in case you haven’t yet put your complaint into writing, we offer a Model Complaint of Discrimination, Harassment or Hostility you can adapt to your own facts, events and circumstances. “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly! 

2. There are many different ways an employer can fulfill its legal duties to “Separate and Protect.” Here are just a few of the ways an employer can fulfill its duty to “Separate and Protect”: (a) change the duties of one or both of the parties to avoid direct contact; (b) change the location of employment of one or both of the parties to avoid direct contact; (c) change the days and times of employment of one or both of the parties to avoid direct contact; (d) place one or both of the parties on leave of absence to avoid direct contact; (e) require that all communications between the parties be supervised; (f) require that all communications between the parties be in writing; or (g) devise some other means of both “separating and protecting.”

3. It is not the employee’s decision to make, but the employer’s decision to make, regarding which way or ways “separating and protecting” should be accomplished. Because it is the employer’s duty to fulfill, it is the employer’s job to determine which way or ways it should be accomplished. In fact, it is important that the employer make this decision, because if additional abuse by either (a) continuation of the initial bullying, harassment, discrimination or hostility, or (b) retaliation, takes place, it is the employer who will be solely responsible for any damages that ensue.

4. That said, there is nothing wrong with the employee – or his/her physician or therapist – requesting that one or more measures be used to “separate and protect.” You and your physician and/or therapist know you best, and know what you believe would be best to avoid what you refer to as “the precarious position where things could get worse.” First, if you are seeing a physician or therapist to help you deal with this bullying, I suggest that the physician or therapist might be the one to best guide you in this choice.

Any suggestion from you to the School Board on this subject should be (a) in writing, (b) quite respectful, (c) clear in that your suggested measures are suggestions, only, and not demands, and (d) clear in how your suggestions would, in your mind, best accomplish the task at hand: protecting you from further bullying and possible retaliation.

5. Like all important communication regarding workplace issues, your communications with the School Board should be in writing and sent in a “verifiable manner.” As I always say in this context, “Say it with your fingers, not with your lips.” When you communicate by spoken words, exactly what you say, what you didn’t say, and exactly how you said what you said, is not often remembered correctly, or can be mischaracterized, and often a subject of later debate.

However, if you “say” it in writing, and you send it in a “verifiable manner” such as email, UPS or FedEx, then these issues will not likely arise, because you have created a solid “record” or “history” of what was said, by whom, to whom, when and in what way. That memorialization of communication is a critical part of successful navigation and negotiation at work.

I strongly recommend that you write to the School Board, remind its members of their “duties to separate and protect,” and consider suggesting the way or ways you think it would best do just that.

We offer a Model Memo for Requesting Protection from Further Abuse and/or Retaliation after Filing a Complaint. It shows you “What to Say, and How to Say It.” To obtain a copy, just [click here.] Delivered by Email, Instantly

Belinda, your concern is real and your thought about taking a step to address it is both wise and brave. I hope this confirms that you are on the “right track,” and helps you travel down that path. My hat is off to you for having the courage to stand up to a bully boss. Bravo!!

My Best to You,
Al Sklover

P.S.: If things don’t work out, do not despair and do not resign. Instead, consider a “Model Involuntary Resignation.” It shows you “What to Say and How to Say It,™” To obtain a copy just [click here.] “What to Say and How to Say It”™ 24 Hours a Day. Delivered Instantly by Email – Instantly. 

Repairing the World,
One Empowered – and Productive – Employee at a Time™

© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 30 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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