. . . more and more employers do not want your resume’, but instead want to see your BLOG?  

According to a recent article in the Wall Street Journal, more and more employers are asking job applicants for – are you ready? – their “web presence,” such as their Twitter account, Tumblr blog, or even a short video demonstrating their passion for the open position.

IGN Entertainment, a division of media Giant NewsCorp., makes video games. To gauge job candidates’ thinking abilities, they turn away resumes, instead asking applicants to engage in online challenges. One question: “Estimate how many pennies, side by side, would it take to cross the Golden Gate Bridge?”

Why the new trend? Perhaps it’s because in 2011 Starbucks received 7.6 million resumes, Google two million, and Proctor & Gamble over one million. And many resumes seem prepared by professionals, devoid of the human touch and spirit.

And speaking of Google, its Staffing Director says he is especially interested in work experience and extracurricular activities such as working as a house painter or touring with rock bands, to determine if you and Google culture would be a good fit.

The times they are a’changing. Ladies and gentlemen: Start up your blogs

© 2012 Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

Note: From Farmington Hills, Michigan, comes this great suggestion about how we can improve our blog, which we have considered and decided to act on:     

“I love your website, and all the articles and videos! Thank you for trying to help the average (and not so average) workers out there!

The only subject that I would like to see covered in more detail is the Americans with Disabilities Act (ADA), and requesting accommodations under that law. It is a complicated route for workers, and I myself had requested an accommodation, but I was misinformed of the requirements, and ended up losing my job. I think it would be a great service for your followers. Thanks for reading.”      

Angelyn
Farmington Hills, Michigan

Dear Angelyn,

THANK YOU SO MUCH for taking the time to make your suggestion. It is a great one, and we have decided to act on it. We are working on a Newsletter on the ADA, and a Model Letter to assist people in requesting accommodations under the ADA.  

I really mean it when I say that I appreciate the help of our “Blog Family” in improving this blog, and in helping others with what we have to offer.  

Very Best,
Al Sklover

Note: More and more, we are getting inquiries about Bully Bosses and other Bullying at Work. As we have noted, more and more states are considering laws to make such misconduct illegal, to which we can only say “IT’S ABOUT TIME.” Here’s a note from a member of our Blog Family who urges help in getting this kind of legislation a reality:

“Just wanted to pass this information along after watching a news report on CBS about bullying at work. Several states have passed what they call Healthy Workplace Laws. This is the same bill that the New York State Senate has on record, and is something that needs to be supported, passed, and made into law. Senate Bill S4289-2011 would establish a civil cause of action [that is, a way for a person to sue] for employees who are subjected to an abusive work environment. http://open.nysenate.gov/legislation/bill/S4289-2011. It is happening every day, and it is emotionally and physically painful.”  

Gayle
New York, New York

Dear Gayle,

Good information and good to hear. I can’t tell you how many clients come to me with horrific tales of what is happening daily at work. While we are in increasingly stressful work environments,  that is NO EXCUSE for what seems to be going on every day in so many workplaces. I encourage our Blog Family to give support to these legislative efforts.

Very Best,
Al Sklover

Note: At the end of each year – and at other times, too – we pause to give Thanks for those who read, enjoy and contribute to our blog. Dan is one of those whose support over the years has been especially heartening. This is his recent note to us:     

“Your end-of-year note of appreciation is truly inspirational. Well done. You, through linkage to my blogroll, make a huge contribution to my blog’s readership. [http://blog.nesacs.org/]

Your site uses terrific art of expression, respectful, and in-depth commentary and provides resources that none compare to.

Many, many thanks.”     

Dan
Boston, Massachusetts

Dear Dan,

The ability of the internet to create and maintain helpful bonds is sometimes overwhelming. It’s support and encouragement from people like Dan that literally keeps us going. Thanks, Dan, as always.

Very Best,
Al Sklover

GODADDY.COM – Register Domain Names & Web Host Services
Click from our Blog Ad – Use Their Services – It Supports our Blog

Note: A few months ago, we published a newsletter entitled “Want to See Your HR File? Here’s How.” It is a simple guide to doing so, but resulted in a lot of positive feedback. This short note was particularly enjoyable.

“Thanks. This is EPIC. I’m going to be getting my HR file. This is very important info. You are life savers.” 

Hallo
(City, State Not Specified)

Dear Hallo,

The information in your HR file can have great consequences to your career. To make sure it is correct, and complete, is a worthwhile task. Though not every state and not every employer permits this, it never hurts to try. Thanks for your “EPIC” note.  

Very Best,
Al Sklover

CREDITSCORE.COM – Get a Free Score; It Could Affect Your Being Hired
Click from our Blog Ad – Order – It Supports our Blog

We LOVE feedback of every kind. Your taking a minute to drop us an email would be so very much appreciated. Please keep email inquiries to 100 words or less; briefly worded inquiries do get priority.

Question: Alan, I am a “laid off” manager, downsized after bringing some ethical and professional inquiries to the attention of then-management. I was never accused of any disciplinary infraction, never given a Performance Improvement Plan, or accused of anything at all derogatory. In fact, just before I raised ethical issues I had been given a raise.

Six months later a new CEO has been hired, and he terminated the three individuals about whom I raised the ethical issues. Now several managers and staff have asked me to contact the new CEO and meet with him and ask for my job back.

How do I tackle this? I loved my job, but don’t want to go through rejection twice. Thank you for your advice.

Lori
Kennewick, Washington

Answer: Dear Lori: Here are my thoughts:

1. First let me salute you for standing up and speaking out about ethics concerns. It takes a special person to do what you did. Though it has hurt you job-wise to do what you did, I hope you know that, if it wasn’t for the courage of people like you, our world – for all its present problems – would not be as good a place to be alive as it is. The courage you have exhibited is the basis of important lessons written about even in the holiest of Books over the thousands of years.         

2. Rejection bothers some people a whole lot more than it bothers other people. Please do not think I am trivializing your concern about rejection, but I do want you to know that rejection bothers some people more than others, and different kinds of rejection seem to make a difference in that regard, as well. Being rejected by, for example, your parents, siblings, spouse, close friends or children is perhaps the most hurtful kind of rejection, as it is so close to our sense of who we are. Being rejected by a new friend, or someone you would like to date, or work for, is usually experienced as less hurtful. Being rejected by a potential employer hurts, but surely it should not get in the way of regaining a job you admit you “loved.” I ask you to ask yourself what about this particular potential rejection makes you so fearful of it. Might you be giving in to a fear of hurt that has little true basis, or is it a remnant of an experience long ago, or of a different kind?  Sure, it may be hurtful, but understanding that it should not be so hurtful may – and  I think will – help you cope with it.

3. My own sense is that a possible brief period of hurt should not be permitted to deny you a lifetime of possible happiness.  Lori, I don’t know you, or your background or experiences, but I do suggest you consider the question “Why should a brief time of possible disappointment deter me from possibly having a lifetime of ‘loving’ my job.” While life is full of “risk-versus-reward” decisions, this one seems to weigh quite heavily toward taking the risk of a brief “hurt.”   

4. Even if the new CEO says, “No Thank You” to your overture, that should not be interpreted in any negative way about you.  Your letter to me is quite clear that your being “laid off” had nothing to do with who you are as a person, or your conduct, or your performance of your job. Said differently, it seems you know full well that your being “laid off” was not a rejection of you, but rather a retaliation for your courage. If the new CEO does not agree to take you back, there may be many different reasons for that other than a view that you would not be a valuable employee. It could be politics. It could be finances. It could be any number of things, all of which are distinctly unrelated to you. Bear that in mind.

5. Please – Do not live in fear, or fear to live. In so many ways we all live in fear, and so, in this way, we fear to live. And, too, so many of our fears are not as “scary” as we often make them out to be. A great deal of my purpose in writing this blog is to convince people of just that: at work, do not be fearful, for to do so is self-defeating. There is enough difficulties in our daily lives; we don’t need to create any more by ourselves. I urge you, as one human being to another, to please try to “see through” your own fears of rejection in this context.  

6. The welfare of others – especially love ones – sometimes prods us to take chances that we would not otherwise take for our own welfare. If you have kids, do they sometimes like to eat? Do you want them to be able to go to college? If you have parents, might they need a bit of help in their later years? More visits now? If you have siblings, might they some day need a loan or other helping hand? You never know when you will want to respond to help someone you love when they need a loan, a lift or a lifeline. Thinking of things in those terms might just make it easier for you to take a chance and seek the ear of the new CEO, despite your concern about rejection.

Lori, I hope you can overcome this fear of rejection. Your former managers want you to do so. Your former colleagues want you to do so, and I am convinced you want to do so, too. Go ahead, take a chance, you really have nothing to lose and everything to gain.

I hope this has been helpful. Thanks for writing in. Now go for it, please!

Best,
Al Sklover

PS: If this was helpful, how about a return favor: Next time you need Business Cards, Stationery, Invitations or Photo Books, consider clicking from our homepage display ad for VISTAPRINT.COM. Doing so helps us continue to publish and help others.

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

© 2012 Alan L. Sklover, All Rights Reserved.

“No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. No. Yes.” [The perfect Job Search.]

- Anonymous

Looking for a job? Been told “No” 999 times? Don’t worry. Don’t fret. Don’t despair. Bear in mind: you’re right on target, statistically and literally. It takes just one “Yes” to make you forget the many “No’s” you’ve encountered on the winding road to success.

© 2012 Alan L. Sklover. All Rights Reserved

Question 1: Can an employer lower commissions caps? Alan, can an employer lower a cap on commissions paid to an employee? Keep in mind the employee is 100% commission, and it also puts a limit on commissions that could be paid out as part of hitting targeted bonus goals.

Larry
Norwalk, Connecticut

The Short Answer is “Yes.” An employer can always change the terms of compensation with two exceptions: (1) not if a contract says it cannot do so, and (2) not retroactively, but only regarding future efforts, not past efforts. As an aside, many employers are lowering commission rates and instituting caps these days in response to difficult economic times.

Sorry for the news,
Al Sklover

We now offer a
185-Step Guide and Checklist to Succeeding
in Non-Compete Disputes. If interested, just click here.

Question 2: Will accepting severance give up my right to unemployment? I have never been downsized or unemployed my whole life. As of Tuesday, my employer gave me a severance release agreement that needs to get signed and faxed if I accept it. By accepting it, will I give up my rights for unemployment. Thank you!

Everett
Altoona, Pennsylvania

The Short Answer is “No, but it might limit how much you can collect.”  As a general rule, Everett, most states’ laws say that you can collect both severance and unemployment benefits, and your being laid off would qualify you for these benefits. Lately, however, more states are passing laws that say your ability to collect unemployment benefits is limited when you are also collecting severance. Pennsylvania passed a law just last year that become effective January 1, 2012 that does just that.

The new Pennsylvania law’s provisions are a little complicated: The law imposes an offset on unemployment benefits that is calculated by subtracting 40 percent of the “average annual wage” under the Unemployment Compensation Law from the total severance amount. Currently, this “40% of the average annual wage” calculation equals $17,853, which means that claimants can receive up to $17,853 in total severance pay before their unemployment compensation benefits are affected. You might check out the website of the Pennsylvania Department of Labor and Industry at uc.pa.gov for more information on how this works.

Hope this helps,
Al Sklover

Our Most Popular Model Letter is entitled
“Response to Receiving a Performance Improvement Plan.”
If interested in obtaining a copy, just click here.

Question 3: In Georgia, can I stop my former employer from using my voice?” I noticed that you responded to the question “Can I stop my former employer from using my voice on its answering service?” but answered it using California law. I live in Georgia so there may be some differences. Are you able to check on this for me? I do not wish my voice to be associated with a company that laid me off after 16 years and 2 years from reaching my full pension. Obviously, I’m very angry. Thanks for your help!

Diane
Atlanta, Georgia

The Short Answer is “Probably not.”  In states such as California and New York, which are centers of media – not that Georgia is a small town – there exist laws protecting people from the unauthorized use of their photographs, names and voices. In Georgia, while the Legislature has passed no laws like these, the Georgia Courts have provided some protections in these regards, but in a limited fashion. Georgia Courts have recognized a legal right of privacy for the unauthorized commercial use of someone’s identity, but from my own review of those cases, I rather doubt it would extend so far as the use of your voice, especially if it does not obviously suggest your personal identity.

Sorry about that,
Al Sklover

We offer a Model Letter entitled
“Model Response to Job Offer Letter.”
To obtain a copy, just click here.

Question 4: Can an employer insist on asking your age on a job application? You’ve always been so helpful . . . but this has me flummoxed. My best friend applied for a job with a company, and as part of doing that she filled out the job application. Then they left a message on her cell phone saying she didn’t put down her age. Can they really ask her for her age outright like that?

Rita
Palm Harbor, Florida

The Short Answer is “Yes, but . . . ” Rita, asking a job applicant’s age on a job application is not, by itself, illegal, but making an employment decision such as hiring or firing on the basis of age, is illegal. So, for example, if your friend was offered the job, it would seem that the decision was probably not made on the basis of her age.  But asking such a question on a job application is as close as you can come to an admission that you are practicing age discrimination, because it means that, in making the decision about hiring, the employer is probably taking age into account. If your friend does not get the job, and the person hired is younger than she is, she would then have a pretty good basis for a discrimination lawsuit or complaint to a state or federal human rights agency.

Stay young at heart,
Al Sklover

To view our free YouTube Video entitled
“The 7 Timeless Truths about HR,” just click here.

Question 5: While you are on maternity leave, can you be required to check your emails?

Ruby
Florida City, Florida

The Short Answer is “Not if you are on an approved Family Medical Leave Act (FMLA) leave.  Ruby, if your employer has given you a period of time off for maternity, it can set conditions for that time off. However, if you have filed for, and have been certified as eligible, for a leave of absence under the federal Family Medical Leave Act (often called “FMLA” for short), then requiring you to check on your emails would be a violation of your legal rights under that law. Being pregnant qualifies you for coverage under FMLA, but you must fill out the forms, and your doctor must also do so, for you to be covered by FMLA.

If you have filed the FMLA certification forms, and would like to file a Complaint for Violation of your FMLA rights, we offer a Model Letter to do so.
If interested, simply [ click here ].

I pray your delivery is an easy one,
Al Sklover

If We offer a Model Letter entitled
“Model Request for More Severance.”
If interested, just click here.

Question 6: Is it OK to tell my employer I am leaving to spend more time with my children? I am an Information Technology Director for a Fortune 50 company and I have decided to resign for personal reasons. We are having some challenges with work/life balance and it taking a MAJOR toll on our two small children. We have decided it is best at this point for my husband’s career to take the lead and I will stay home. I am not leaving for another job. Is it too much to provide this information to my employer as I know they will ask why I am leaving?

Anonymous
(City and State Not Provided)

The Short Answer is “Absolutely yes.”  Your doing so is fine for several reasons. First, it is so laudable. I tell people that everything I know about children can be illustrated in how they spell the word LOVE:  T-I-M-E. Your values are surely in the right place. Second, it eases any concerns your employer may have about your leaving to join a competitor. Third, it probably keeps the door open to your returning should you decide the time is right to do so. Fourth, it may make it more comfortable to keep in touch with colleagues and friends at work. I salute your decision, and I encourage your openness with your employer in this regard.

Good luck to you!!
Al Sklover

We offer a Model Memo entitled
“Anonymous Complaint about BULLY BOSS.”
To obtain a copy, just click here.

Question 7: Do you know of any statistics on the increased use of unfair Performance Improvement Plans? Alan, I subscribe to your daily email newsletter. You recently mentioned “the worldwide epidemic of PIP’s . . . that have been used in cynical fashion to defeat employees’ rights, interests and earned compensation by intimidation, humiliation and insinuation.” This is EXACTLY what is happening to me right now: the contrivance of a PIP to serve politically preordained objective of depriving me of my job in federal service. I am fighting it, of course, but I had no idea that my circumstances were part of what you describe. My question is simply this: Where may I find out more details of this recent phenomenon? It would be helpful to substantiate my case. Thank you for your assistance.

D.S.
San Antonio, Texas

The Short Answer is “I don’t know of any source of statistics on PIP’s.”  D.S., as far as I know, our blog is the only place that receives daily communications from people in places on every continent (other than Antarctica) about Performance Improvement Plans. I’ve received email about abusive PIP’s now for six years, and the increase is nothing short of dramatic, and almost overwhelming. I wish I knew of someone who is compiling statistics, but I don’t. Sorry about that.

Keep up the good fight,
Al Sklover

To view our free YouTube Video entitled
“Unemployment Benefits – The 12 Basics to Know,”
Just click here.

Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. Questions of over 100 words will not be reviewed. And only one question at a time. If you do submit a question, you agree that Alan’s answers are not legal advice, but only suggestions to consider. Please understand that not all questions can be answered, due to limitations on time and space. Still, we “do our best to do our best.”

Note: Brief Questions are given Priority in Answering

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

© 2012 Alan L. Sklover, All Rights Reserved. Commercial Use Prohibited.

Question: Two months ago I pushed back against a Performance Improvement Plan using your PIP Ultimate Package materials. I didn’t use a lot of the legal terminology from your Ultimate Package in my rebuttal to Human Resources. This was an attempt to get HR on my side with the use of facts and timeline. I have not heard back from HR since I submitted my rebuttal.

Since then I was hospitalized due to high blood pressure and heart palpitations. I am on a FMLA leave of absence for the next 10 days, and then I’m scheduled to return to I-don’t-know-what.

I am planning on purchasing your Involuntary Resignation Model Letter. Should I first wait for a response from HR on my rebuttal?

S.S.
Florida

Answer: Dear S.S.: It’s near impossible for me to suggest to you what to do without knowing more of your facts and circumstances, or even what you wrote in your 16-page rebuttal. And even your email, above, raises several different issues. I will though do my best; here are some of my thoughts:               

1. It’s great to read you have stood up and pushed back to a Performance Improvement Plan. I salute you. From my experiences helping people with Performance Improvement Plans for almost 30 years, I know it is not easy for someone to “Stand Up and Push Back.” Though it’s not easy, it is almost always the best thing to do in the long run, for many different reasons. It can be stressful, that is for sure, but most people find doing nothing in response to a false and unfair Performance Improvement Plan to be even more stressful. As folksinger Joan Baez said, “Action is the antidote to despair.”

2. One thing you have done concerns me: It is almost always a grave error to try to “get HR on your side.” Members of our “blog family” know that HR is not “on your side,” is not meant to be “on your side,” and should not be “on your side.” HR works for management, and has a duty of complete loyalty to management. If HR was on your side, HR would not have placed you on a PIP in the first place. And HR is not the people who will decide how to respond to your PIP pushback: that decision will be made by “Decision-Makers.” The central idea behind PIP pushback efforts is to do just that: “push back,” not “cozy up.” I think you should have sent yours to a “Decision-Maker,” such as your boss, your boss’s boss, or your boss’s boss’s boss. Then he or she can send it to HR, but it’s better to get a Decision-Maker involved in the matter first.

Please, please, please, spend ten minutes or so to watch our free YouTube Video entitled “Seven Timeless Truths About Human Resources.” You can do so by simply [clicking here].

3. Though you are on a FMLA leave of absence, you can still contact HR and ask “When will I be receiving a response to my PIP Response?” Knowing if and when you might be receiving a response should both (a) give you more data upon which to make an informed decision about what to do next, and (b) make you feel less anxious about making a decision. There is no reason to refrain from doing so.

4. Though you are on a FMLA leave of absence, you can still contact HR and ask “When I return, will I restart or continue in my Performance Improvement Plan, or has it been abandoned in response to my letter?” Knowing the answer to this question, too, should serve to (a) give you more data upon which to make an informed decision about what to do next, and (b) make you feel less anxious about making a decision. You have a very strong reason to support this request for information: it is necessary to calm you down, and reduce your high blood pressure and heart palpitations. If I were you, I would tell that to HR, and let them know that you need an answer for health reasons.    

5. While I know none of the facts about your PIP, and few of the facts of your medical conditions, I do know that, if your job has caused such stress that it has placed you in the hospital, it might be necessary to get out of that employment relation, and the sooner the better. S.S., if you lose your health, you’ve got nothing left. No job is worth experiencing such serious medical issues as you are. If things at work have, indeed, led to such serious ailments, then it would sound to me like “Involuntary Resignation” might be a perfect path forward for you.

As you know, “Involuntary Resignation” is a concept I invented, and usually enables employees to leave their jobs without necessarily giving up their rights to (a) unemployment benefits, (b) severance, or (c) legal claims to raise against employers. While I acknowledge that it is highly anxiety-provoking to be without income to support yourself and your loved ones, no one can deny that being ill or deceased doesn’t make supporting your family any easier. So, yes, S.S., it may be a wise thing to consider moving forward with an Involuntary Resignation. It’s not an easy decision, but one that – one way or the other – you will have to make.

If you’d like to view our YouTube Video entitled “Involuntary Resignation – Standing Up Without Giving Up,” just [click here].

If you’d like to read my newsletter by the same title, just [click here].

And if you’d like to obtain a Model Letter for Involuntary Resignation for your own adaptation and use, just [click here].

S.S., more than anything I hope that you quickly regain your health and vigor. That really has to be your number one goal. I think that figuring out the right path forward for you will contribute to that goal, and your starting to take action will move you even further along to health. My prayers are with you, and my bet is on you!! Go get ’em.

Best, Best, Best,
Al Sklover

P.S.: Next time you need Domain Name registration, Web Design or Internet Hosting services, please consider using our Display Ad for GoDADDY.COM. That would help us pay the bills, to keep helping people just like you.   

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

© 2012 Alan L. Sklover, All Rights Reserved.

Question: I was a sales rep for a welding supply distributor. I quit my old job and I came to this new job. I never signed any non-compete agreement. A customer of my old job contacted me asking for a quote on argon, something both my old employer and my new employer sell. That quote went well, and now we have their argon business.

Then my former employer sued me and my new employer for a breach of contract for $50,000. Since then, to settle the suit, my new employer and my old employer agreed – without me being involved – that I would not work for my new employer for 24 months.

Now I am unemployed. Can I sue my old employer for interference?

Dan
Mundelin, Illinois

Answer: Dear Dan: Your situation is becoming more and more common. Here is the relevant analysis to follow to get the answer to your question:                

1. If you did not sign a non-compete agreement, you are entirely free to go to work for a competitor of your former employer. The freedom to work for whom you want to is a very basic and fundamental freedom, and an important part of the free-market, free enterprise system. If you did not sign a non-compete agreement, then you cannot be “legally” sued for violating it. That said, some employers use threats of litigation, and actual litigation, as improper “weapons” to get what they want. And, sadly, sometimes it works.  

2. However, your former employer may have alleged that you violated a different kind of “agreement” that is implied in the law: the implied agreement (i) not to be disloyal while still employed there, (ii) not to steal customer lists, and/or (iii) not to steal pricing information. While you may not have signed an agreement not to compete after you left, the law says that every employee must honor an “implied” contract not to (i) tell customers to come along with you before you leave the old employer, (ii) take client lists with you, or (iii) take pricing information with you. It is possible you violated one or more of these “implied” agreements, or that your former employer believes you did.

3. If you did not violate either (a) a written non-compete agreement, or (b) one of the “implied” agreements noted above, then you may just have a good case of “interference” to sue for. A growing area of employment law is what employment lawyers call “unjustified interference,” or “tortious interference” by a former employer with an employee’s new work relation. It is just what it sounds like: interfering with someone’s employment without a justifiable reason. Sadly, more and more employers seem to be engaging in such wrongful behavior in an attempt to hold on to their business when their employees leave them.

4. In order to win such a “tortious interference” case in most states, you would need to establish the four elements: (i) an existing employment (or business) relation, (ii) interference with that employment (or business) relation, (iii) for the sole purpose of harming  that employment (or business) relation, and (iv) harm to the relation. As lawyers, we try to make sure that we can establish the necessary “elements” of a case before we start the case. In your facts, it seems clear that (i) you began a new business relation (that is, employment) with your new employer, (ii) your former employer interfered, and (iii) your employment was damaged, that is, you were fired. There is one element I’m not sure about, and it is the most important element in any of these cases: Did your former employer have any good, proper and justifiable reason to do what they did, or did they act simply to hurt you and your new job? That is almost always the “missing element.”

If your former employer can show that they had some reasonable information that (a) while you worked for your former employer, you told their customers to leave with you, or (b) you took with you and used their secret customer lists, or (c) you took with you and used their secret pricing information, then they have a good, proper and justifiable reason to take steps to protect themselves. On the other hand, if they did not have such a good reason, then they can be sued successfully for “tortious interference with business relations.”

Dan, you know the facts here. If you seem to have the four necessary elements of a lawsuit for tortious interference, I suggest you consider consulting with an experienced employment attorney in your area.

If you would like a list of experienced employment attorneys in your area, which seems close to Chicago, simply [click here].

Thanks for writing in. I hope this is helpful. Good luck in your upcoming job search.  

Best,
Al Sklover

PS: If this was helpful, how about a return favor: Next time you need Business Cards, Stationery, Invitations or Photo Books, consider clicking from our homepage display ad for VISTAPRINT.COM. Doing so helps us continue to publish and help others.    

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

© 2012 Alan L. Sklover, All Rights Reserved.

“A boat doesn’t go forward if everyone is rowing his own way.”

- African Proverb

At work, no matter what our organizations does, or what role we play in those efforts, we all must “move forward” together, in one direction, to survive and thrive. That takes channeling the multiple and diverse perspectives, experiences, thoughts, efforts, and energies of all in one general direction. Not an easy thing to do. But, if you become a person who recognizes this, who permits this, who encourages this, and who engages in this, you will represent, and be recognized for, enhanced value to all. Row together, or go nowhere.

© 2012 Alan L. Sklover. All Rights Reserved

Question 1: Can the clients of an independent contractor use the subcontractor that was used by the independent contractor after the subcontractor has ended the independent contactor/subcontractor relationship? 

Chrystal
Clinton Township, Michigan

The Very Short Answer is “Yes.” With one possible exception: if they agreed (with anyone) that they would not do so.

Freedom is so sweet,
Al Sklover

We now offer a
185-Step Guide and Checklist to Succeeding
in Non-Compete Disputes. If interested, just click here.

Question 2: Can my employer change a supposed “mistake” in our new compensation plan? I was presented with a new 2012 compensation plan during the last week of December. During this meeting my boss and I both signed the acknowledgements of the change, and I was told the plan would go into effect starting January 2, 2012. Yesterday – January 6, 2012 – my boss informed me that there was an error in my compensation plan, and that the President of the Company wanted to change the terms of one of my bonuses because he felt it was too easy to reach. The comp plan was approved by both the VP and President, and supposedly it was an oversight by both of them. Is this something my employer has the right to do?

Kristin
Irvine, California

The Short Answer is “Yes, probably.”  As a general rule, an employer can change the terms of employment – and that is what a compensation plan is a kind of – with two exceptions. Exception No. 1: If the comp plan says “Once this plan goes into effect, it can’t be changed for a full year.” So, read your comp plan over carefully. My expectation, based on my experience, is that it is either silent on the point, which means you’re out of luck, or more likely it says that the employer can change it at any time. Exception No. 2: Your employer cannot change the comp plan retroactively, that is, change the rules after you’ve worked all or most of the year. Since you’ve worked just 4 days under that plan, I’d say the employer could probably change it. But, then again, you need to read the terms of the comp plan itself.

Sorry, but mistakes do happen,
Al Sklover

Our Most Popular Model Letter is entitled
“Response to Receiving a Performane Improvement Plan.”
If interested in obtaining a copy, just click here.

Question 3: How can I protect myself after being given a written warning? I was given a written warning by my employer, after never receiving a verbal warning first. How can I protect myself for being fired, especially when I believe I am being watched closely?

Patrice
Brooklyn, New York

The Short Answer is “The best I can say is: You’ve got to read our blog articles, and watch our blog videos.” Patrice, you haven’t provided much in the way of facts, especially what you believe is the reason this has taken place. Is it retaliation for something you have filed a complaint about? Is it perhaps a matter of discrimination? Is the performance review false and fraudulent? All situations are different, and each situation – and many others – are presented in different parts of our blog articles and blog videos. You’ve got to do some reading.

We’ve made it easy for you,
Al Sklover

We offer a Model Letter entitled
“Model Response to Job Offer Letter.”
To obtain a copy, just click here.

Question 4: After receiving severance, can I go back and sue? Alan I was laid off in November, 2011. I was given six months severance which is more than most people; 10 weeks was the norm. My situation is unique, however, in that I lead the start up of a new business that required 200-250 days a year travel. In the last four years I spent over 250 weekend days overseas. I delayed a divorce for three years and the company knew this. We negotiated for over two years on what compensation would be for this extraordinary sacrifice, and they just kept leading me on. Do I have any viable grounds to sue?

Tim
Portland, Maine

The Short Answer is “No, unless you are prepared to give back your severance monies.” Tim, I suggest you review our severance blog section. You’ll see that severance is not a reward for past accomplishments, but a payment to acquire from you a release of claims. Your dedication is extraordinary, but severance is not payment for dedication; instead, it is payment in return for your agreement not to take certain actions in the future, including (i) not to sue, (ii) not to disparage, (iii) not to hold on to company property, (iv) not to divulge company secrets, etc.

If you have already signed your severance agreement, you have already given up any rights to sue. The only way you can sue now is to claim you were tricked into signing the severance agreement, but in that case you would have to return the severance monies you received. Also, while you may well have been “lead on,” the absence of any agreement on how much you were due suggest not much basis for a lawsuit. My strong suggestion for you for the future: negotiate compensation and severance before you do extraordinary work, not afterwards.

Sorry for the bad news,
Al Sklover

To view our free YouTube Video entitled
“The 7 Timeless Truths about HR,” just click here.

Question 5: I have several different workplace concerns. Any ideas? My employer is involuntarily reducing my hourly rate ($20 to $14). I am concerned this will have a negative impact on my Unemployment Compensation weekly benefit rate since I will be listed as a part-time employee at $14 per hour. I am losing all of my accrued vacation/holiday/profit sharing, 4 weeks of Paid Time Off, (PTO), and most importantly my health care benefit. No COBRA as my employer opted out of our small 2-person group plan when he signed up for medicare. I tried to negotiate for some severance and was told I would be given two months health care reimbursement. My boss is also in the habit of not providing my retirement account statements of which I believe I fully vest as of 12/31/11. Any ideas?

Deborah
Salford, Pennsylvania

The Short Answer is “You seem to have so many possible legal claims, you really need to meet with an attorney. Deborah, it seems to me that you may have several valid legal claims regarding the loss of accrued vacation days, profit sharing, COBRA, and related to retirement account vesting. However, from the limited facts you’ve presented, I can’t say for sure. I strongly suggest you consult with an experienced employment attorney your area.

We can provide you with a list of five or more experienced employment attorneys in the Philadelphia area. If interested, simply [ click here ].

Hope all goes well,
Al Sklover

If We offer a Model Letter entitled
“Model Request for More Severance.”
If interested, just click here.

Question 6: Are your Model Letters meant to be sent to the Employer, the Labor Department, or both? Hello! I love the information on your website! My question is about the Model Letters: Are they mainly targeted toward HR and Management, or can they be used to file a complaint with the Labor Department? I believe my employer violated FMLA, and I want to file a formal complaint. Or should I send a letter to both parties? Thank you.

Angela
(City and State Not Provided)

The Short Answer is “HR and Management, primarily.” Angela, our Model Letters are designed to “say the right thing in the right way” to HR and Management. Most State and Federal agencies have their own forms that they require you fill out when filing a complaint. However, two things come to mind: (a) First, you might get what you want by first sending a letter to HR and Management, without having to file a Complaint with a State or Federal agency, and (b) Second, you can always attach your memo to HR and Management to your State or Federal agency to better illustrate your issues and concerns, and that you have first tried to resolve them on your own. That could only help.

Thanks for giving me the opportunity to clarify that.

Good luck to you!!
Al Sklover

We offer a Model Memo entitled
“Anonymous Complaint about BULLY BOSS.”
To obtain a copy, just click here.

Question 7: If your employer has a 401k matching benefit, are they required to match your contributions up to the point that you left, even if their contributions usually happen a couple of months later?

Tom
(City and State Not Provided)

The Short Answer is “It all depends on the terms of the particular 401k Benefit Plan.” Tom, in my experience, every time an employer establishes a 401k program, they set out the “rules and regulations” of how it works, that is, who is entitled to what and when. Those “rules and regulations” are usually put together into what we call a Plan, or sometimes they are summarized in a “Summary Plan Description,” or “SPD.” You must review the Plan of your employer to determine your rights.

I must say this: many 401k plans say the following: “The employer will match the employee’s contributions [in a certain way, to a certain maximum amount] and the payments are made at the end of each calendar quarter, provided the employee is still then employed.” If your 401k Plan says this, and you left before the end of the calendar quarter, then you would not be entitled to 401k matching benefits for the last few weeks or months of your employment during that “un-completed” calendar quarter. My hunch is this may very well be what has happened to you.

Ask HR for a copy of the Plan,
Al Sklover

To view our free YouTube Video entitled
“Unemployment Benefits – The 12 Basics to Know,”
Just click here.

Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. Questions of over 100 words will not be reviewed. And only one question at a time. If you do submit a question, you agree that Alan’s answers are not legal advice, but only suggestions to consider. Please understand that not all questions can be answered, due to limitations on time and space. Still, we “do our best to do our best.”

Note: Brief Questions are given Priority in Answering

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

© 2012 Alan L. Sklover, All Rights Reserved. Commercial Use Prohibited.

Question: I have been asked to keep quiet regarding my employer’s knowingly overcharging a customer on a contract price component while my company pockets the extra profit.

I am ready to resign but want to settle regarding keeping this quiet in exchange for a cash settlement. Can this be done?    

Dean
Camas, Washington

Answer: Dear Dean: I am glad you wrote in. If you try to do what you seem to be considering doing, you could possibly go to prison for a long time for committing a very serious crime: extortion.                

1. It is a serious crime – extortion – to say, in one way or another, “I will tell people something about you unless you pay me money.” Or, “I won’t tell people something about you unless you give me money.” And, in the law, it doesn’t make a difference whether what you are threatening to tell people is true or false. In fact, it is often the true things that people do that they are most frightened will become public knowledge.   

2. Extortion is just like armed robbery, but without being armed with a weapon. Most states define extortion as the gaining of property or money by almost any kind of threat, including threat of violence (“I will break your leg if you don’t give me $1,000.”), unfavorable government action (“I won’t approve your zoning application unless you give me sexual favors.”), or harm to reputation (“Unless you give me $100, I will tell people you are a child molester.”)

If, however, you have a gun in your hand when you say these words, and thus make the other person feel a threat of imminent physical danger, you are then committing armed robbery. Incidentally, extortion commonly carries just as long a prison sentence as does armed robbery.  

3. In requesting severance or a settlement, if you have a valid legal claim – such as if you were sexually molested by a boss, or if you were fired because you refused to go along with theft from a client – you can say “I will go to court, and raise these issues in Court, unless I get a settlement for my damages.” Isn’t saying that the same thing as extortion? No, not at all, because you can only go to Court if you have a valid legal claim, and not a made up one. In fact, if you made up a claim without basis in fact, and then went to Court, you could in fact be accused of, and possibly convicted of, extortion. Court is a public place, that is true, but a threat to go to Court with a valid legal claim is not extortion, though many people feel that way.

4. Many lawyers who help people gain better severance packages are called “extortionists.” Dean, I can’t count the number of times I have heard people call me that name. However, I know that I must believe my client is telling me the truth about a legal claim, I must believe he or she has a valid legal claim, and I am very careful not to threaten “You’ll be exposed,” but rather “You’ll be sued.” Being a lawyer, you tend to get used to people calling you vile things.

5. Here’s a real illustration of a demand for a settlement or severance package that was not extortion: A few years ago, the then-Governor of New Jersey got a telephone call from a lawyer who said, in effect, “My client is a man, and he says you told him he could have a state job only if he had sex with you. He has a valid sexual harassment claim. Unless you settle for $5 million, we will bring you to Court.” The Governor called the FBI and said, in effect, “I am being extorted.” The FBI said, “No, you are not. A threat to go to Court with a valid legal claim is not extortion.” That is really what happened. Oh, yes: that Governor did admit what the lawyer claimed was true, and then resigned.

I believe that, if the same lawyer said “If you don’t settle for $5 million, I will go to the newspapers,” then that lawyer would probably be in prison today. I hope you see the difference. 

If you feel you do have a valid legal claim against your employer, you may be wise to consider requesting a severance package even before one is offered to you. We offer a Model Letter to Proactively Request a Pre-Termination Severance Package. If you’d like to obtain a copy, just [click here].

And, if you think you’d like to consult with an experienced employment attorney in the Seattle, Washington, area, we offer a list of them by simply [clicking here].

Dean, I hope this is clear to you. If not, I strongly suggest you speak with a local lawyer before doing what you seem to be considering doing. I know that this can sound a lot like “lawyer-talk,” but there is a real difference – in fact and in the law – between threatening exposure and threatening a lawsuit based on a valid legal claim.

Thanks for writing in. Good luck in your upcoming transition.

Best,
Al Sklover

P.S.: If this has been helpful to you, please consider making your next travel reservations through our blogsite’s EXPEDIA.COM advertisement. That is what supports our efforts. Please give it a thought; it costs no more, but it does help us help you.

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

© 2012 Alan L. Sklover, All Rights Reserved.