“It is not where you serve, but how you serve.”

- J. Rubin Clark

If you have not visited the Vietnam War Memorial in Washington, D.C., please consider doing so. It is not flashy or grand, but simple and direct, like the men and women it honors. It is not anonymous, but highly personal, containing the names of over 52,000 people killed in service. It can be touched, and powerfully touches back. And it rises out of the earth, and then recedes back into the earth, like each one of us will. It truly serves to remind us of the inhumanity of war, and the humanity of those who served. To all of you who have served in the name of peace and freedom, THANK YOU.

© 2012 Alan L. Sklover. Commercial uses prohibited. All rights reserved and strictly enforced.

Danger Ahead:
Dependent Audits are On the Rise.

In recent months, more and more corporate, institutional and public employers are performing random “dependent audits.”

Why? Many employers provide their employees with reduced premiums for health, life and other forms of insurance. These are rather expensive subsidies, intended to make the employer a more attractive place to work. These subsidies are intended for employees and their immediate families.

However, many employees are tempted to, for example, help their sisters, parents, friends and others get low-cost insurance by listing them on their employer-provided insurance policies as, for example, children, spouses or domestic partners.

This is wrong, a kind of theft or fraud, and possibly criminal. Employers are increasingly performing random “dependent audits,” insisting on seeing documentation to prove listed status, such as birth certificates, drivers’ licenses, marriage licenses, or other indicators of true relation.

If you have been tempted, or are tempted to assist a relative, friend or loved one in this dishonest way, think again. It could result in job loss, career damage, lawsuit or even criminal prosecution. If you have made this mistake, mend your ways as soon as possible.

Caution: Danger Ahead.

© 2012 Alan L. Sklover. All Rights Reserved

Question: Hi, Alan. I received a job offer from a major Fortune 100 company (you definitely have heard of the firm.)

On the offer letter, it says: “If I voluntarily terminate my employment within 12 months of my start date, I agree to reimburse the Company for any expenses paid or reimbursed and for any hiring bonus provide by my offer letter.”

This offer does not have any relocation package or sign on bonus. Could they be talking about – and could I be liable for – their other internal expenses? For example, since the Company outsourced its recruiting function to another service company, could I be liable for money they pay to the service company for recruiting efforts associated with me?  

J.M.
Manchester, New Hampshire

Answer: Dear J.M.: From the wording of the agreement that you have provided me, I think it is unlikely that the Company would make such a claim, and even if it did, I think it is even more unlikely that you would be found liable if it ever went to court. Here’s my thinking:            

1. In figuring out what an agreement means, we must first look at what the words say. This is always the first step in analyzing an agreement. Your agreement says “expenses paid or reimbursed.” It does not say “internal costs and expenses.” Since companies do not “pay” or “reimburse” themselves, it is hard to imagine that “paid or reimbursed” applies to “internal expenses.” Bear in mind: any employer – and especially a large, sophisticated employer like yours – could have written “internal expenses incurred” if they wanted the agreement to cover those. They did not, and we must presume they did not because they did not mean that. 

So, in looking at the exact words – and only the exact words – it sure looks like you should not be liable for “internal costs and expenses” because “internal costs and expenses” was not expressed by the words.  

2. Next, if any doubt remains as to the meaning of the words, we then consider their most likely meaning. In considering what is most likely meant by the words expressed, we can then take into account their context, other words used in the agreement, our experience, and logic. [As an aside, I think of this phase of analysis as an arithmetic equation: context + experience + logic = common sense.] 

In this phase of analysis, I notice that your agreement also requires repayment of hiring bonuses, but you did not get a hiring bonus. This leads me to believe your employer used a “form” or “stock” agreement, even though it does not totally apply to you. The same is probably the case for the “expenses” sentence: it is likely meant to be for relocation, temporary housing and similar expenses commonly “paid or reimbursed” to new hires, but not to you. So, context, experience and logic all suggest that “expenses paid or reimbursed” in your agreement refers to such other expenses – such as relocation and temporary housing – and not to “internal costs or expenses.”

In fact, I view “internal costs or expenses” to be a real stretch of logic and experience: as an attorney doing these things for 30+ years, I have never seen an offer letter that requires a new hire to repay “internal costs or expenses.”   

3. Also, there is a general “rule” of legal interpretation: “If a document is unclear as to its meaning, then it is interpreted against the interests of the author.” In this, too, we see that the law is common sense and simple fairness passed down from one generation to the next. Quite a long time ago, our Courts decided that our entire society would be better served if people did not use vague words – either intentionally or accidentally. 

So, slowly but surely more and more Judges wrote in legal opinions, “If anyone should lose out in a battle over vague words, it ought to be the person who wrote them.” As you might imagine, this encourages people to be clear, and precise, and not to claim words meant something that they didn’t express. It is in this way that the law helps our society remain a peaceful and orderly society. It gives people confidence that “The rule of law will protect the honest among us.” Though we often feel that the law is difficult and expensive, we truly underestimate how wonderful it is in preventing problems and “keeping the peace.”

J.M., for these reasons I think you do not have to worry about repayment of “internal costs or expenses” being demanded if you voluntarily leave your employer before the 12 months is up. If you do receive such a request, respond with this reasoning in an email, and ask them how they can ignore (a) words, (b) context, (c) experience, (d) logic, (e) common sense, and (f) the rule of interpretation I have mentioned above. That, I think, will surely do the trick. 

You may also want to review our other blogsite articles on repayment obligations. To do so, just [click here.]    

Thanks for writing in. I hope this has been helpful, to you and to all of our blog readers.  

 My Best,
Al Sklover

P.S.: If you plan to resign, one of our most popular “Ultimate Packages” of forms, letters and checklists is entitled “Ultimate Resignation Package” consisting of four Model Letters/Memos and our 100-Point Pre-Resignation Checklist.” To obtain a copy, just [click here.]

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

© 2012 Alan L. Sklover, All Rights Reserved.

“I’ve got all the money I’ll ever need
if I die by four o’clock.”

- Henny Youngman 

ACTUAL CASE HISTORY*: Melanie was employed for four years by an accounting firm. Her title was Executive Computer Specialist, and her primary duties were those most people would call “trouble-shooting.” That is, whenever a firm partner or a member of the firm’s executive team had a computer problem, Melanie was called in to fix it.

Of course, emergencies do not neatly schedule themselves between 9:00 am and 5:00 pm. As you might imagine, Melanie sometimes received calls at 5:00 pm, requiring she work through dinner, and even later hours, to fix a problem. And sometimes, too, she received calls on the weekends requiring weekend work. She was quite good at what she did, and was always considered a “preferred fixer.” Over her four years with the company, her weekly salary rose to $2,200, which yielded Melanie a yearly income of $114,400. 

Unfortunately, Melanie received a notice that, due to cost cutting, her position was being eliminated, and then outsourced. For severance, Melanie was offered four weeks salary, that is, one week for each of her years with the company, for a total of $8,800. On the advice of her friends, she consulted us to review and discuss her severance agreement.

As is our custom when we are consulted, we first interviewed Melanie to learn the facts, events and circumstances of her employment. We also carefully reviewed the severance agreement Melanie was being asked to sign. As is almost always the case, Melanie was being offered some severance monies provided, however, that she sign an agreement releasing any claims she might have against her employer.

Our interview of Melanie did not find any legal claims she might have against her employer, with one major exception: Melanie, like most people who work in the U.S., was entitled to overtime for any hours she had worked over 40 hours in a week. However, she had never been paid overtime. When we calculated the amount of time Melanie had put in over 40 hours in a week, and the amount of overtime pay she was due – but had not been paid – we found that her employer actually owed Melanie over $115,000. Wow. And, by federal law, Melanie might even be entitled to double that amount, that is, $230,000. Wow, wow. Still further, by federal law, Melanie might also be entitled to interest on what she was owed, attorneys fees and Court costs if she went to court. Wow, wow, wow. So, it turned out Melanie was being offered $8,800 to give up a very solid legal claim for $230,000, perhaps more. That made no sense to us, and that made no sense to Melanie, either.

We contacted Melanie’s employer by a letter to the CEO, and after a few weeks of negotiations, achieved a settlement for Melanie: $100,000, provided she (a) release all of her legal claims, including the claim for unpaid overtime pay, and (b) maintain confidentiality about this entire matter. Her employer, it seemed, was concerned both (i) about what a jury might award Melanie, and (ii) that other employees might learn their rights to overtime pay, and then exercise those rights, as Melanie was doing, at a very significant expense to it.

Nice increase in severance: from $8,800 to $100,000, all because Melanie learned her legal rights. Education does, indeed, pay off.

LESSON TO LEARN: The vast majority of employees in the U.S. are entitled to time-and-one-half pay for any hours they put in over 40 in a week, by a federal law called the Fair Labor Standards Act, or “FLSA” for short.  FLSA’s coverage includes hourly and salaried employees, and there is no strict income limit on eligibility, as explained below. Many states have state overtime laws that give employees even greater overtime benefits, as well as broader eligibility to overtime pay.

Historically, many employees have not received overtime pay to which they have been legally entitled due, primarily, to ignorance of the law by both employees and employers. In recent difficult financial times, even more employees are being denied overtime pay to which they are legally entitled due to conscious cost-cutting efforts by employers.  

Chances are that you are entitled to overtime pay for time you put in over 40 hours in a workweek. To learn the basics of overtime pay eligibility under FLSA, just read below. You just might be as fortunate as was Melanie.   

WHAT YOU CAN DO: To find out if you are entitled to overtime pay, simply consider these guidelines. If you believe you may be entitled to overtime pay but are not receiving it, consider the suggestions below to remedy that situation:  

Continue Reading. . .

“We judge others by their behavior. We judge ourselves by our intentions.”

- Ian Percy

This thought is quite profound. It so eloquently confronts each of us with the double standard that, to one extent or another, exists in all our minds and hearts. Perhaps it is because we use our objective eyes to “look out,” but our subjective minds to “see in.” And because it is so insightful, it is so potentially valuable in human dynamics. Remember that your employer will judge you by your achievements, not by your efforts or intentions. And, perhaps more importantly, remember that your employer, when confronted by its own errors and errant ways, sees only its proper intentions to efficiently manage.

© 2012 Alan L. Sklover. All Rights Reserved