“Freedom lies in being bold.”

- Robert Frost

Robert Frost had such a way with words. He seemed unafraid to express ideas and feelings that all understand, but rarely brought to mind. He was bold. He was free. He was right. At work, be bold in what you do and how you do it, for this is a life of freedom.

© 2010 Alan L. Sklover. Commercial uses prohibited. All rights reserved and strictly enforced.

Question: Hi! What can I do if in my employment contract it said that I would be paid each 15th day of the month, and each 30th day of the month, but due to my employer’s lateness in depositing my payments, I incurred an overdraft charge? 

        Ana        
        Yorkshire, England 

  
Answer: You can and should do two things:

First, you should try to find out why the payment(s) were late. Was a clerk on vacation, did the company have a problem with cash-flow, or perhaps did the employer believe your contract said something different? Finding out the “root cause” of a problem is your first task, because it is the key to (a) preventing its recurrence, and (b) your success in your second step.

Second, respectfully, but without hesitation, let your employer know that payment(s) were late, that it was due to their fault or error,  you incurred an overdraft charge as a result, and that you would expect the employer to reimburse you for the financial charge incurred.

Companies are not different than people: they should make amends for their errors and the harm their errors have caused. So long as you act in a respectful fashion, there should be no repercussions to you, and your chances of reimbursement are pretty good.

Of course, you could also bring the matter to your country’s version of our “small claims courts” but we usually do not recommend such adversarial actions in light of the potential harm to your employment relations.

Thanks for writing in. Hope you’re enjoying our blog.
        

 Best,  Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

Question: I have been working as an independent contractor for a large Fortune 500 multi-national staffing agency / consulting firm for the past few years. Yet I have been getting the very strong impression that this present employer has been sabotaging my efforts to procure full-time offers outside of the companies that they work with, who they bill me out to.

I received possible confirmation of my suspicions just two months ago. I understand that they want to keep me working for them, as they make lots of money off of me working on long-term contracts for their business partners.

How can I deal with this? Should I go so far as to hire a Private Investigator, to see how the staff at my local branch handles calls from recruiters asking about my work history?

Thanks for any suggestions.

        Charlie        
        Cincinnati, Ohio         

Answer: There are three ways I have seen clients deal successfully with your predicament.

First, some of my clients have used the services of “reference checking” companies they have found on the internet who, for a fee, do “reference checking” to see what employers were saying about them. I can’t recommend one to you, but I can tell you that if you type “job reference check” into your search engine, many will come up.

Second, some of my clients have had two or three of their friends, or friends of their friends, call up their employers – or even sometimes their bosses – to ask “Would you hire this person again?” While it lets your boss know you are out there looking, it may solve the kind of problem you are afraid you are facing. One client went so far as to tape record what was being said to her, and in this way won a very large settlement against her employer, and her “saboteur” was fired.

[If you consider taping a telephone call, you must first determine whether the recording of telephone calls is legal in your state. In New York it is legal, so long as at least one of the participants in the call is aware it is being taped. Check, first, about your own state’s laws.]

Third, some of my clients have written to their employer’s senior management, and said, in effect, “I am concerned that my applications for new, full-time jobs elsewhere are being sabotaged when my references are being checked. Of course, this would be wrong. Might you please remind people in my branch office that this would be wrong, and perhaps even unlawful? I would very much appreciate that.”

Some of my clients have done all three of the above.

If any of our readers have had success with other ways of dealing with “reference sabotage,” I invite them to please write in and share your stories. I will be sure to share them with our readers.

Hope one or more of these work for you. Please write back to let me, and our readers, know both what you did, and how things went. 

         Best,  Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

Question: I’m a 49-year-old woman and was let go from my job after 3.5 years at a large corporation last week. I never received a performance review last year, and I was told vague reasons when I asked why I was let go.

I was offered severance and bonus, and was told I was eligible for unemployment insurance. They even offered to write me a recommendation.

Then online my job was posted 5 days later, looking for a replacement with 2 to 5 years; I have more than 10 years experience. I think my age may have played a role in my being terminated.

Should I see an attorney about this? I’m more interested in gaining more severance than a lawsuit. Thanks.

        Deborah        
        New York, New York         

Answer: Deborah, I do think that you should seek a consultation with an attorney, for five important reasons.

First, it sounds like you have not yet signed a “severance agreement” or “separation agreement” which are the most common names given to the document employers have employees sign before severance monies are paid. I truly believe that, before you sign any legal document, it pays to have an attorney look at it for you. It might even have other, harmful things that you don’t recognize as harmful.

Second, if you believe that age may have played a role in the decision to terminate you, you do have “legal leverage” to seek more severance. A good attorney will ask you many questions – just like a good doctor will – to determine what facts, events and circumstances would support your claim of age discrimination, or – let’s be frank – possibly even indicate that your claim is not very strong. Only a good, experienced attorney can do that for you.

Third, “you never get unless you ask.” That is, we suggest all employees who are terminated ask for more severance, and use their “best arguments” to support that request. You must make sure that you are clear that your request for more severance is not a rejection of what they’ve offered you, only a request that they reconsider. Human Resources professionals tell me that “There’s always a ‘reserve fund’ for terminated employees who come back with a credible argument.”

Fourth,  age discrimination is the most common discrimination there is. At the same time, juries all can relate to it, as “Whatever our gender, race, religion, or background, we all get older one day at a time.”

Finally, I believe people “rest easier” later, that is, feel better about what happened, if they at least look into whether they had a credible legal claim or not. Otherwise, “you’ll always wonder.”

Seek an attorney who (a) is experienced in employment law, (b) preferably, represents employees only, never employers, and (c) comes recommended by others who have been through what you are facing, and found the attorney helpful.

I do not seek to have you waste your money on legal expense. But I do think it is not wise to be “Penny Wise and Dollar Foolish” in this situation.

My best to you. And I hope you find new employment before your severance runs out.

Thanks for writing in. Hope you’ll tell others about our blog, and maybe subscribe – It’s Free!!
 

         Best,  Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

“Being deeply loved by someone gives you strength, while loving someone deeply gives you courage.”

- Lao Tzu

I simply can not think of a better way to say this, or a necessary comment upon it.

© 2010 Alan L. Sklover. Commercial uses prohibited. All rights reserved and strictly enforced.

Question: I was laid off and am receiving severance from my previous employer. My severance agreement says that it will be “off-set” if I earn outside income.

I would like to start consulting to expand my network, and increase the diversity of my experience, but I would, in essence, be working for free until my severance ends.

My question is this: Can I legally delay receiving payment for my services until after my severance period expires?

        Name Withheld        
        Salt Lake City, Utah        

Answer: Your question is a really good one, and one that I’ve been asked many times before.  The answer is that you probably cannot collect both severance and consultant monies, but then again, maybe you can. Here goes: 

Your severance agreement is what we call “mitigated.” I’d say about 20% of severance agreements I see are mitigated. In effect, it means “What you make elsewhere during your severance period will be deducted from (that’s what “offset” means) your severance monies.” The idea behind “mitigation” of severance is to keep you at the same level of income for a period of time, not to help you earn more than you were earning before. (You’ve got to admit, it makes some sense.) So, it sounds as if monies you might earn as a consultant during your severance period will be for naught.

However, what the words say, exactly, is important. If the words say “if you receive any monies for services rendered during the severance period,” or if the words say, “if you collect any monies for services rendered during the severance period,” then at least technically, if you arrange receipt or collection of your consultant monies after the severance period, you would be “in the clear.”

Then, again, employers are not stupid. More commonly they use the word “earn,” to make sure you don’t try to get around their intentions to “mitigate” your severance.

One thing about your question intrigues me: If you are interested in “expanding your network” and “diversifying your experience,” why would consulting – without charge – limit those efforts? I’d think that, if you explained that due to your severance agreement, you need to work “for free,” you might have a better chance of doing both . . . especially in today’s difficult economic circumstances.  It would be their good fortune to have you assist – without charge!  Give it some thought. It might be a great way to get your “foot in the door” and develop a whole new set of relations and experiences that you otherwise would have difficulty developing.
 
As always, hope that helps you, even if it is not what you were hoping to hear.

        Best,  Al Sklover 

 © 2010 Alan L. Sklover, All Rights Reserved.

Question: At the beginning of December, I submitted a resignation to be effective January 31. I was then “laid off” effective January 11. Do I have any legal options?

       John        
       Beaumont, Texas       

Answer: That depends on what you mean by “options.”

You do not have any “option” to sue your employer for choosing to end your employment relation before you wanted to end it; that is the employer’s right. Just as, if your employer gave you three months’ notice of layoff, and if you left earlier than the three months.  

Because of your “layoff,” however, you probably do have an “option” to collect unemployment insurance benefits if you wish to.

If you employer has a severance plan or policy, this gives you the “option” to request payment of severance.

You also now do have an “option” to contest the reason(s) for the layoff – that is, to raise an issue that it was discriminatory, or retaliatory, or perhaps in violation of assurances that you could remain with the company until January 31. Each of those would constitute a legal claim.

Lastly, you do also have an “option” of requesting of your boss, the CEO, or the Board of Directors, directly, that they honor your original resignation date, as it seems to have been made with a sense of fair play and honest regard for the employer’s interests. This last “option” is one most often forgotten, but more effective than most believe.

Hope this helps.  

         Best,  Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

Question: Should I have someone with/for me in meetings with a supervisor and HR about a Performance Improvement Plan (“PIP”)? 

If so, who should that person be – a coworker, an attorney, another supervisor (I have 7) or someone outside of work?

Thank you. I had been ready to give up, but now feel empowered by your information and advice.

        Anita        
        Harrisburg, Pennsylvania  

Answer: Dear Anita: Before answering your question, I would like to say, “Thank You” for what I consider to be the best compliment I could hope to receive: that I gave you hope and confidence in dealing with your employer. That is precisely what this blog is all about.

First, I would suggest that you make a written request to HR and your supervisor that you be permitted to have someone with you in every Performance Improvement Plan (“PIP”) meeting. That being said, (a) you have no legal right to have someone with you, and (b) most employers do not permit that to take place. Still, why not make the request? Do so in an email, and do so respectfully. Explain that you feel intimidated or “ganged up on,” you feel mistrustful, you are concerned that there may be things said or done in the meeting that might be hurtful to you and your job, and that no good reason exists for denying such a reasonable request. It is not likely this will be granted to you, but why not ask?

Second, if they say, “Yes,” I would choose a person who (a) you trust, and (b) they trust, as well. It would also be a good idea if it was someone who has “credibility” in the company, that is, whose truthfulness is unquestioned. It might be another supervisor, it might be a senior executive, it might be a colleague.

Third, even if they say, “Yes,” it is unlikely that they would permit you to have an attorney with you in the PIP meeting. And even if they approve of your having an attorney with you, I think it might make them more uneasy than if you have a well-known, highly trusted, senior company executive in the room.

Fourth, no matter what they say, it is very important that you (a) set YOUR agenda for the meeting, (b) give them YOUR written response to their claims of performance problems, (c) take careful notes of YOUR recollection of what was said, (d) YOUR insistence that this be reviewed by an independent person or attorney, and, most importantly, (e) after the meeting, send them an email containing (i) YOUR agenda, (ii) YOUR written presentation, (iii) YOUR notes of who said what, and (iv) YOUR insistence that this entire process be “investigated.”

This is so there is a solid written record of what transpired, from YOUR point of view, not theirs. You should include any items that you believe are false, unfair, illogical, discriminatory, and just plain wrong. This last step is very, very important, whether or not you have a “witness” with you.

You might even send your materials, all of them, to the company’s Head of HR, and/or the CEO, because you believe you are being unfairly and dishonestly targeted, and your leaving the company would be a loss to its shareholders or owners.

Do not be afraid to write the TRUTH in the face of POWER, and do not fail to MAKE A WRITTEN RECORD OF ALL THAT TAKES PLACE. Employers so often have a totally different agenda: to hide the truth, make a false record, and – since the employee has no “record” to rebut it – intimidate employees into giving up. Do not let that happen to you!

Hope this helps. I’d love to hear how you do. And, if this is helpful, please tell a friend or two about our blog.

         Best, Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

“People don’t care how much you know until they know how much you care.”

- Mike McKnight

Whether you care about other people and their concerns, and how much you care about them and their concerns, is the first thing they consider. That goes for your customers, your colleagues and your supervisors. Being smart and educated is great, but brains will not get you success, if your heart is not there first.

© 2010 Alan L. Sklover. Commercial uses prohibited. All rights reserved and strictly enforced.

Question: Dear Alan: I am an engineer with over 25 years of experience. I am 62 years old. In 2008 I worked very hard, and did very well: I published three papers in my field of expertise, and even submitted two inventions with my managers. For five years, I got talented reviews, and was described as a “Talented Engineer,” although I was also described as having “deficiencies in communication.” 

In May 2009, I was diagnosed with cancer and had surgery for it. In July, during recovery, I received “unfriendly emails” from my manager, and in November I was placed on a Performance Improvement Plan (“PIP.”) I responded that the PIP was not an accurate or fair presentation of the facts, and this month (January) I filed a formal complaint against my supervisor. This was not the first complaint I had filed about my supervisor, or his improper conduct.

I was laid off shortly after that, and offered severance of two weeks pay and six months medical insurance. I signed the severance agreement.

Can I now file a lawsuit against my employer for unlawful termination?

     Eli        
        San Jose, California 

Answer: Odds are you cannot. This is because the severance agreement you signed almost surely contained a release of all claims you might have against your employer, and a promise never to sue regarding anything having to do with your employment or its termination.

The “basic deal” of almost all severance agreements is that (a) the employer gives the employee some transition assistance (that is, money, benefits, and sometimes other things, such as outplacement assistance or career coaching) and, in return, (b) the employee makes several promises to the employer. These are usually never to sue, not to disparage, to return company property, not to give company confidential information to anyone else, and other such things. Since you signed your severance agreement, you are almost surely bound not to bring any kind of suit against your employer, or your supervisor.  

However, if you did not have an attorney review your severance agreement before you signed it, and are willing to give back your severance, you may have a chance to void the agreement if you went to court and told the judge, in effect, that you did not know the ramifications of your agreement. You would have a better argument to do this than most people, because your employer knew you had “deficiencies in communication.” While not all judges would rule in your favor, I think that you could have a pretty good chance of winning.

You would be wise to call your city’s Bar Association for a referral to a local attorney experienced in employment matters.

Thanks for visiting our blog; come back soon. My best to you.

         Best,  Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.