Question: Can a job offer be rescinded if my new employer finds out I was terminated from my old employer?

         Name Withheld
         New York, New York

Answer: Yes. Job offers can be rescinded for almost any reason, other than legally impermissible reasons such as illegal discrimination or illegal retaliation.

If you told your new employer that you were not terminated, and it turns out that you were in fact terminated, and in this way you were caught in a lie, it is to be expected that the job offer will be rescinded.

Both employer and employee are expected to be truthful during the application-interview-hiring process.

Hope this helps.

           Best, Al Sklover

©  2010 Alan L. Sklover, All Rights Reserved.

“False scales are an abomination to the Lord.
But a just weight is His delight.”

- Old Testament, Proverbs 11:1

ACTUAL CASE HISTORY*: Jasmine, 42, a senior executive at a major fragrance company had a clear written employment contract that guaranteed her – unconditionally – a minimum annual cash bonus of $120,000. When her employer was three weeks late in paying her, she submitted a polite email inquiry to HR, asking when the bonus would be paid. The response was simple, and surprising: “Because business was not good, the company has decided that, regardless of contractual obligations, no bonuses will be paid this year.” Soon after Jasmine found a new position with a different employer, and consulted our firm about how she could collect the $120,000 bonus due her.

Jasmine’s employment contract provided that “Any and all disputes will be resolved by binding arbitration under the auspices of the American Arbitration Association (called the ‘AAA.’)” Jasmine was happy, because she heard that arbitration was faster, easier, less formal and less expensive than the usual court-litigation process. We were not so happy, because from our experience with arbitrations in recent years, and especially with arbitrations using the American Arbitration Association, we knew that arbitration has increasingly become slower, more difficult, often more formal and always more expensive than the usual court-litigation process.

Sadly, it turned out we were right. The arbitrator appointed by the AAA considered herself an expert arbitrator, and told us so every few minutes. Her schedule was very busy – as was apparently her personal life – so it often took months to get her to answer requests. She was quite a stickler for detail: Her own “rules” required all communications to be in writing, sent a certain way, using a certain font and font size, and specified margins. Worst of all, she announced early on that, in order to review the two sides’ submitted materials, she needed to first be paid for “study time” of $50,000, half from each side. She also mentioned that the Hearing could not take place for at least 18 months, and that it would require additional fees of $20,000 from each side. That did not include her fees for the time at a Hearing, or her fees for what she called “post-Hearing” consideration of the record.

We inquired with the AAA whether anything could be done to rein in what seemed like abusive behavior of several kinds. “No,” we were told, “AAA arbitrators are free to set ground rules.” At the conclusion, Jasmine won her $120,000, but it cost her $30,000 in legal fees and $75,000 in arbitrator fees, and it took almost three years.  End result: it was a bad, difficult, drawn-out, negative and very expensive experience for all concerned. Except the Arbitrator; she seemed to enjoy every minute.

LESSON TO LEARN: For many years, arbitration was seen as a less formal, more efficient, less expensive and faster way to resolve disputes. And, for many years, it was those things. Essentially, you submitted a written Statement of Claim, the other side submitted an Answer, and then you met with a person – often a retired judge –  and hashed out your differences. A week or two later, the retired judge rendered his or her decision, and the parties honored it. That sure seemed good. Wow, things sure have changed over time.

Increasingly – and especially if the American Arbitration Association was used – arbitration became more difficult, much more expensive, less efficient, and slower than court litigation. Arbitrators now often seem to stretch out the case to make more money; Judges in court do the opposite: try to move cases along quickly. Now arbitrators often require more formality than Court Judges do. Now arbitrations almost always cost much more than does court litigation, and even last years – or as long as the arbitrators want them to, because the longer the arbitration, the more the parties have to pay the arbitrators. Clients are not happy, lawyers are not happy. Only arbitrators seem to like the present system.

But here is the key: If you take control of the process – and you can – you can use the old ease, informality, brevity and inexpensive nature of arbitration to enhance your interests, not the interests of the arbitrator or the arbitration company.

How do you do that? You do so by making the “arbitration rules” yourself, and insisting that the arbitrator follow them; otherwise you will take your “business” elsewhere. You can do that by insisting on inserting what we affectionately call “Sklover’s Arbitration Rules” into (a) every employment-related document and agreement you sign, and (b) if there isn’t any employment-related agreement, then suggesting to your “partner-in-dispute” that using Sklover’s Arbitration Rules when commencing an arbitration is surely in both of your interests.

The key to doing so is to control the process so that, no matter who “wins” or “loses,” at least it will not end up making both “partners-in-dispute” miserable, frustrated and poor, while making the arbitrator happy, comfortable and rich.  It is not certain that your “partner in dispute” will agree to such a process, but you can only make it more probable if you can illustrate the many advantages they will enjoy. In recent years, we have found that more and more attorneys for both employees and employers find our “Sklover’s Arbitration Rules” to be fair, smart and effective in reaching a conclusion to disputes – which is in everyone’s interests. Well, not “everyone.”

WHAT YOU CAN DO: Here are what we call “Sklover’s Arbitration Rules” we recommend you request these either be inserted into every employment-related document you sign, or be used as a separate agreement to control every employment–related dispute resolution process you engage in. Of course, they can be modified as the parties may decide is more suitable to them, their circumstances, and their interests:

Continue Reading. . .

Question: Our company is going through a reorganization. I have only four months to go in order to fully vest in our Retirement Plan.

I work for a new Department Head, and she is bringing in her own people to staff the department. My contract was approved for another year prior to her becoming my Department Head, but I know she wants to replace me with a friend of hers.

What do you think my chances are of negotiating a severance package to last at least four months so that I remain on the payroll and get to my vesting date?

         Maggie
         San Francisco, California

Answer: Maggie, I receive many questions like yours from people who are near vesting in their retirement, stock or other benefit plans. Like you, they all fear losing out on significant benefits earned over years for a reason they cannot control.

First, you must understand that almost every retirement plan I have ever seen says words to the effect, “You must be a full-time employee in good standing on the date of vesting in order to vest.” On the other hand, severance is not generally paid to employees, but only to former employees. For this reason, I believe it is very unlikely that your employer would count time that you are being paid severance – which is only paid to former employees – toward vesting in the retirement plan. You must read the retirement and severance plans very carefully on this point, or send an email to the Head of Human Resources and ask him or her to give you information on this very point.

Second, you might be able to negotiate a “pre-termination notice period,” which means an agreed upon period of time BEFORE termination that lasts a day or more past your retirement vesting date. Under this scenario, you would remain a full-time employee in good standing until the vesting date, and then, as a former employee collect severance.

This second path is often referred to as “Negotiating a Bridge to Retirement,” and I have written a newsletter on that exact subject, entitled “12 Steps to Negotiating a Bridge to Retirement. ” To read it, just [Click Here]. 
 
Third, I suggest you may be best off by writing an email to Human Resources, telling them your concerns, and expressing the thought that this might even be motivated by a desire to deny you your retirement. You might even “cc” it to the CEO.  DO NOT offer to leave, with or without severance, but insist on staying on at least the four months. And make sure you are EXPLICIT that THIS IS NOT A RESIGNATION, but the opposite. Generally, steps like these help employees in your circumstances. There are no guarantees, but in my experience this is what “works.”

Hope this helps. Thanks for writing in. It would be great if you could write back in a month or two to let us know how you did. 

           Best, Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

Question: Alan, I have breast cancer. I am presently out on an approved federal Family and Medical Leave Act (“FMLA”) leave of absence for the permitted 12 weeks. Before I went out on this FMLA leave of absence, I was always a top performer.

For the past six weeks or so, my boss has done a series of things that have made me uncomfortable. As examples, he has threatened my job if I don’t return early, and told me that, despite the law, there is no guarantee I will have my job back. He was so mean, I cried.

Our company’s Human Resources department has a Leave of Absence desk; my boss actually got into a fight with them because of the way he has treated me. It has gotten so bad that the Vice President of Human Resources directed that I don’t speak with my boss at all, but only to her. I told the VP of Human Resources that I was frightened about how my boss would treat me, especially now that he knows I have complained about him. Since then, no one has called me back.

I’ve told Human Resources that I will not feel comfortable working with my boss when I return,  because of how he has treated me. He seems “protected” because he is with the company for 20 years, and knows a lot of senior managers. What can I do?

Kellie
Ada, Oklahoma

Answer: Kellie, first may I say that it is my prayer that your breast cancer will go into remission, and that you will soon regain your health completely.

As to you, your employer and your FMLA legal rights, I strongly suggest you file a FMLA Complaint about how you have been treated with the federal agency that is there to help taxpayers like you on matters of FMLA: the Wage and Hour Division of the United States Department of Labor. And, at the same time, I strongly suggest you send a copy of your FMLA Complaint to the President of the company you work for, and the Head of Human Resources at your company.

Your FMLA Complaint should lay out the facts as you have done for me, and even a bit more detailed, if possible. When it comes to such things it is better to give more information and detail than less. Do not be afraid to do so: not only is it your legal right, but it should only give you more protection from such retaliatory behavior as you have described.

The US Department of Labor Wage and Hour Division will investigate your complaint. While they are generally quite responsive, I suggest you mention your breast cancer, and ask that the investigation of your Complaint be expedited. Send your FMLA Complaint to both of these two places, by Federal Express, UPS Overnight Service, or U.S. Express Mail:

As noted above, send a copy to your employer’s President and Head of Human Resources.

Of course, you might also consider obtaining the legal advice of a qualified employment attorney in your area.

Kellie, I really do believe this is what would likely help you the most in your circumstances. While I am not licensed to practice law in Oklahoma, as to your federal FMLA rights, this is what I have seen help my clients the most. First, it will surely get the attention of your employer. Second, it may provide you with the help of the government, without cost. Most of all, I hope and expect it will reduce the anxiety and stress you are experiencing from this situation, which I am sure can only help your body gather the strength, stamina and serenity you need to overcome your breast cancer.

As noted above, I will say a prayer for you. I hope that others who read this blog will do so, as well. We are all in this together.

My sincerest Best to you.

Al Sklover

©  2010 Alan L. Sklover, All Rights Reserved.

“You can add salt to soup.But once you do, you can’t take it out.”

-Sylvia Sklover

At work, when things get difficult, when events upset you, when people seem to deserve harsh response, take a deep breath and, if necessary, take a brief walk around the corner before responding. Once said, or once written, and with an email, once transmitted, you can never take back those words, or that tone, or the damage they may do. It takes so long to build a relation, and a reputation, and so little to lose them, especially these days. Hold off on “the salt” until you are sure “the soup” really needs it.

© 2010 Alan L. Sklover. All Rights Reserved. Commercial Use Prohibited.

Question: I am a 67 year old manager. In April, I received unsolicited emails that were both anti-Muslim and pornographic, and I made the mistake of resending them on to others. As a result of the distribution of this email around our company, a memo was then sent out by Senior Management indicating that negative employment actions would be taken if this ever happened again.

In July, I was confronted with what I had done in resending the offensive emails. I immediately apologized, and sent to everyone on my email distribution list an email that stated that, effective immediately, all non-business use of company email must stop.

Now, in August, I was dismissed for my resending of those offensive emails back in April. Does this “punishment” fit the “crime?”

         David
         New York, New York

Answer:  David, I receive many, many questions just like yours, both in my legal practice and from Blog visitors. It is far too easy to make the kind of mistake that you did.

From my perspective, whether “the punishment fits the crime” is a hard question to answer, because I would need to know many facts and factors that your email did not provide me. As just a few examples:

• It would make a difference to me if this was the very first time you did such a thing, or if this happened ten times previously.
• It would seem relevant to me to know whether the company had a strict policy against such behavior, and had distributed that policy to you and others.
• It would make a big difference to me to know whether the company was “selective” in who was punished and who was not. Might older employees have been singled out? Might members of Senior Management who also resent the emails have been treated more kindly?
• As a result of the termination, did the company avoid paying you any retirement benefits?
• Were you ever assured that your apology and corrective efforts would result in your being forgiven and given a second chance?
• Does your company have a “progressive discipline” policy that requires you be given a fair time and procedure to appeal your termination?
• Have you suggested that a personal apology to any Muslims in the company might be a better step to take for all?
• How badly does this termination affect you and your family financially? 

I hate to see people fired, especially those over 65 years of age.

At the same time, I hate to see people treated with contempt because of their religious beliefs. When I was 3 years old, my family moved to the suburbs. My very first memory of suburban living was my brother and I being beaten up by three boys – aged 5 and 7 – shouting religious hatred. I remember that event, and those boys’ names, to this very day, 56 years later. I think it changed my life. 

With the utmost of sincerity, I suggest you consider the various facts and factors that weigh on your own sense of what is fair in light of your “crime,” and prepare a heartfelt letter to your employer, either senior most management or the Board of Directors. In that letter, ask that you be given an opportunity to show remorse, then viewed as redeemed, and given a second chance to show your redemption and value, as a result of what President Obama would call a “teachable moment.” Under the circumstances, that seems to me to be the best, and most effective, step to take for all concerned.

I hope this helps; I really do.   

           Best, Al Sklover

©  2010 Alan L. Sklover, All Rights Reserved.

Under the Federal Family Medical Leave Act (“FMLA”), while most people are entitled to take a leave of absence for up to 12 weeks care for themselves or a family member who is ill, a spouse, child, parent or next of kin of a member of the U.S. Armed Forces who is ill or undergoing treatment are entitled to an unpaid leave of up to 26 weeks.

© 2010 Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

It is a time to Build Your “Ships”.

It seems to me that many of the “threads” of our social fabric are undergoing change. As just one example, people and courts are arguing over what, in fact, constitutes “marriage.” In another recent headline, people are arguing over whether a major religion is, in fact a “religion.” The employment relation, too, is undergoing profound societal examination. “Should employers be able to treat employees this way?” is a common question we receive.

Times of change are times of instability. In such times, more than ever it is time to build your “Ships.” It is your “Ships” that get you through the stormy times and, eventually, to the security of a “safe harbor.”

The “Ships” I refer to are the relation-Ships that give you job security. They include friend-Ships, member-Ships, mentor-Ships, intern-Ships, partner-Ships, apprentice-Ships and other “kin-Ships” of every type. These are your personal “threads” that together form the support networks that establish, build and maintain job security.

Consider this a good time to build “Ships.” If storms continue, you will have better support. If storms abate, you will have smooth sailing.

Build “Ships” related to your work.

© 2010 Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

Question: The company I work for has announced it is closing the division I work for. If I accept another job for a different company before the closure is complete, are they still required to give me my severance package, or do I sacrifice any package they offer after I leave?

         Alicia
         Fall River, Massachusetts

Answer:  Alicia, it is almost always the case that if you are not still working for your present employer on the very day the division is closed, then you won’t be entitled to any severance. That is because almost all severance plans or programs say that only employees still working for the division on the day the jobs are lost are entitled to severance; any who leave before that are not eligible for severance.

However, your company’s severance plan or program may be one of the very, very few that say that you would be eligible even though you left before the day your job was eliminated. For this reason, it is crucial you ask your company’s Human Resources Department for a copy of the Company Severance Plan or Program, and read it carefully yourself.

You might ask Human Resources for both (a) the answer to your question, and (b) to show you the applicable language in the Severance Plan. If you are either reluctant to tell Human Resources that you might have another job, then you might ask an attorney to read the Severance Plan for you.

Hope this helps. Thanks for writing in. Hope you’ll subscribe to our blogsite; it’s free.

           Best, Al Sklover

©  2010 Alan L. Sklover, All Rights Reserved.

Question: I’ve been with this government job for 8 years. Recently I talked to a Manager about two Team Leaders, one who I think is a bully, and the other who I think plays favorites. Even though the conversation was supposed to be confidential, the Manager told another Manager, and the next thing I know, after 8 years, all of a sudden my performance is rated terrible.

I know I am not perfect, but I also know I am not terrible. I have asked my Manager for examples of my poor performance, but he couldn’t give me any.

I have been taken off work that allows me to be in the office, and given only field work, which is far more difficult to do. Now another employee is being considered for the in-office work.

I am a single mother and the sole provider for my three kids. Also, this job gives us our medical benefits. I really can’t afford to lose this job, especially in this economy.

I did speak with HR, but I have not heard back from them. Do you think Management is going to fix this wrong? What can I do?

         Name Withheld
         St. George, Utah

Answer: If there is one thing you remember from reading this Answer, I hope it is this: “Do not speak with your lips, but with your fingers.” Once again, “No lips; yes fingers.”
 
What I mean is this: when you are reporting events or raising concerns about being treated unfairly, or improperly, or being retaliated against – which seems to be what happened to you – you should not just “speak” with a Manager, or “speak” with Human Resources. Instead, you need to “Email” to them a written account of what happened, when it happened, who may have witnessed it happening, why you think it happened, and every other fact, event and circumstance that makes your version of events that much more credible.

If you “speak,” what you say may not be remembered, or reported honestly, or taken seriously. When you “write” things in an email, what you have written can’t be forgotten, or lied about, or ignored. And, it can be very, very easily  sent later by you to higher authorities, if that becomes necessary. Sure you can “speak,” but if you do you also need to send an email and write, “As I told you today . . . .” 

In your email report, make sure you give as many details as possible, including your request for specific examples of poor performance, and the Manager’s inability to provide any. 

I truly hope that you (1) get your old duties back, that you (2) remain employed, and that you (3) feel more secure at work in the future. The chances of each of those three things happening go up about 200% if you “use your fingers, not your lips” in reporting wrong treatment to Human Resources, Managers or other authorities at work.

We have lots of articles, readers’ letters and videos on “How to Push Back to Poor Performance Reviews.” Read and watch them; they’re all free. And then get down to work reporting to Human Resources what happened, just as you did to me.

Oh, yes – a tip for the future. Never assume, or trust, that a conversation at work will be held in confidence; they rarely are. You have a better chance of reporting that same information to a Manager, and adding at the end: “I appreciate your promise to keep this TOTALLY CONFIDENTIAL.” When that is in writing, and in an email they cannot deny receiving, your chances of it being honored go up dramatically.

Hope, pray and trust this will help you and your children. I will say a prayer for you and them tonight.

Thanks for writing in.    

           Best, Al Sklover

©  2010 Alan L. Sklover, All Rights Reserved.