© 2008, Alan L. Sklover. All rights reserved. Commercial use prohibited.

“Courage is contagious.
When a brave man takes a stand, the spines of others are often stiffened.”
- Rev. Billy Graham

ACTUAL CASE HISTORY: At least once a week a blog subscriber, a client or an attorney-friend assisting an employee asks this question: “In negotiations, what should I ask for?” Our answer is always the same: “Whatever is important to you, whether it’s higher compensation, more time off, job security, or anything else.” The next question is almost always the same: “Do you have a checklist I could look at?”

While there is no perfect checklist that lists every possible employee request, we have put together our own SkloverWorkingWisdom™ Checklist to help people in this predicament. Your own life, your own concerns, your own circumstances are unique. Thus, you may have your own, unique items to add to this checklist. That being said, you can use our checklist as a guide.

In using our checklist, any comments, suggestions and ideas you may have for addition to our SkloverWorkingWisdom Checklist would be appreciated by us, and by all who will later make use of them.

LESSON TO LEARN: Would you go into a sales meeting ill-prepared? Would you attend a Board meeting ill-prepared? Would you want your surgeon to operate on you ill-prepared. It doesn’t help anyone to be a fool, or to look like one. Ben Franklin said, “By failing to prepare you are preparing to fail.” Failing to prepare for your employment-related discussions with your Boss is foolish. Careful preparation makes you look and act like a professional, and everyone wants a professional on their team.

WHAT YOU CAN DO: Make good use of our checklist.

The order in which we have presented the topics in our Checklist is similar to the order in which they are usually set forth in a fully-negotiated executive employment agreement. Most employees don’t have formal employment agreements. This Checklist can be used by anyone, whether or not they have, will have, or don’t have, an employment agreement.

SkloverWorkingWisdom™ Employment Checklist

A. REGARDING THE POSITION

1. Title(s)
2. Duties, Responsibilities
3. Role in Company Structure

• a. Reporting Chain
• b. Authorities
• c. Resources / Staffing
• d. Promotion Assurances / Promises / Intentions
• e. Office Location

4. Term of Agreement

• a. Fixed Number of Years
• b. Open-Ended, Without Limit
• c. Until Particular Age or Event
• d. Automatically Renewed, Unless Notified Otherwise
• e. For Specified Project Only
• f. Expressly “At Will”

B. REGARDING COMPENSATION

1. Base Salary

• a. Fixed Annual Increases
• b. Cost of Living Increase
• c. Formula-Based Increases
• d. Never to be Decreased
• e. Never to be Less than Same-Level Colleagues

2. Bonus / Short-Term (Annual) Incentive Compensation

• a. Fixed Amount
• b. Percentage of Salary
• c. Company Discretion
• d. Formula-Driven
  • i. increase in share price
  • ii. increase in profits
  • iii. other targeted criteria
• e. Payable in Cash, Stock, Other
• f. Discernible Performance Criteria
• g. Guaranteed Minimum

3. Commissions

• a. Written or unwritten plan
• b. When earned
• c. How calculated
• d. When payable
• e. Draw recoupable/non-recoupable
• f. Territories / Accounts exclusive?
• g. Audit procedure
• h. Continuation after employment

4. Long-Term Incentive Compensation

• a. Profit-Sharing
• b. Stock, Options
• c. Performance-Related

5. Deferral Opportunities

• a. Extent, Period
• b. Investment Options
• c. Funded/Non-Funded; Security Measures

6. Sign-On Bonus

• a. Repayment obligations

7. Sign-On Loan : Forgivable/Non-forgivable

8. Loss Make-Good:

• a. Former Employer’s Bonus
• b. Former Employer’s Equity

9. Allowances

• a. Relocation
• b. Continuing Housing Assistance
• c. Travel
• d. Entertainment
• e. Auto
• f. Cost of living

C. REGARDING BENEFITS

1. Insurance Plans (Company; Executive Supplemental)

• a. Health
• b. Life
• c. Disability; Long-Term
• d. Dental
• e. Commencement of Coverage(s)
• f. Ability to Convert to Personal Policy
• g. Health Savings Account

2. Retirement

• a. Pension
• b. Continuing Insurance Plans
• c. Consulting for Company
• d. Annuity
• e. 401(k) and variants

3. Vacation, Sick-Days, Holidays, Paid Time Off

• a. Banking/Rollover of unused days
• b. Maternity/Paternity Leave

4. Perquisites (commonly called “Perks”)

• a. Trade Association Dues
• b. Club Memberships
• c. Personal Assistants
• d. Education / Tuition Reimbursement
• e. Use of Car, Apartment
• f. Legal expense reimbursement
• g. Flexible Schedule
• h. Job Sharing
• i. Company discounts, free services

D. REGARDING EQUITY

1. Options

• a. Upon Signing
• b. Future Grants
• c. Price
• d. Vesting
• e. Exercise Date(s)
• f. Class of Shares
• g. Restrictions on Stock
• h. Non-Dilution
• i. Incentive Stock Option / Non-exempt
• j. Tax Issues

2. Stock Grants

• a. - j. (See above)
• k. Phantom equity
• l. Buyout opportunities
• m. Preferences
• n. Tag-along, Drag-along rights

E. REGARDING RISK-LIMITERS

1. Loss of Position

• a. Limited Reasons
• b. Minimum Notice
• c. Change of Duties
• d. Severance
  • i. Minimum
  • ii. Specified
  • iii. Company Standard

2. Failure to Promote Upon Succession
3. Loss of Authority
4. Loss of Opportunity for Advancement
5. Loss of Support Staff
6. Assurance Against Policy Changes
7. Change of Control
8. Change in Board composition
9. Indemnification against liabilities
10. Change in Location

F. REGARDING COMPANY POLICIES and PRACTICES

1. Employee Handbook
2. Graduated Discipline
3. Annual Performance Reviews
4. Stock Trading and Accounts
5. Posting of Positions
6. Expense Reimbursement
7. Company Policy Manual

G. MISCELLANEOUS

1. Foreign Placement

• a. Expatriate Tax Assistance
• b. Travel Allocations
• c. Immigration/Work Approval Matters
• d. Housing Allowances
• e. Currency of Payment

2. Relocation Expense
3. Guarantees of Employer Performance

• a. Surety Bonds
• b. Letters of Credit/Annuities
• c. Parent Companies

4. Specified Goals
5. Required Representations

• a. Citizenship / Immigration Matters
• b. Necessary Licenses
• c. No outstanding non-compete agreements
• d. No possession of trade secrets

H. TERMINATION

1. Death or Disability

• a. Definition of Disability
• b. Continuation of Salary
• c. Continuation of Benefits for Family
• d. Acceleration of Conditional Grants
  • i. options
  • ii. bonuses
  • iii. long-term incentive compensation(s)

2. For Cause

• a. Definition of Cause
• b. Notice Requirement
• c. Opportunity to Cure or Commence Cure
• d. Compensation and Benefits Continuation
• e. Severance

3. Without Cause

• a. Compensation and Benefit Continuation
• b. Accelerated Vesting of Equity Grants
• c. Buy-out Provisions
  • i. merger or sale of company
  • ii. change in control
• d. severance
• e. bonus (whole or pro rata)
• f. expense reimbursement
• g. waiver of non-compete
• h. 401k match for year

4. Voluntary Departure

• a. Forfeiture Provisions
• b. Restrictive Covenant
• c. Non-Competition
• d. Notice / Garden Leave
• e. Continuing Confidentiality
• f. Good Reason concept

I. POST-TERMINATION MATTERS

1. Confidentiality
2. Trade Secrets
3. Non-competition
4. Non-solicitation
5. Non-disparagement
6. Return of company property
7. Final expenses

J. DISPUTE RESOLUTION

1. Internal Mechanisms
2. Outside Agencies
3. Alternative Dispute Resolutions

• a. Who pays costs
• b. Location

4. Mediation
5. Litigation

• a. Which state law governs
• b. Prevailing party gets legal fees?
• c. Which court(s) required

6. Injunctive Relief

Our Quality Vs. Power™ (QVP™) Method of Workplace Negotiating emphasizes smart negotiating – and navigating – for yourself at work. Negotiation is, first and foremost, a matter of motivating your employer to make decisions in your favor, and leverage is what you do to motivate. But don’t start negotiating without a plan, and without goals. There are opportunities and problems in every aspect of working life. Careful consideration regarding your own personal goals – whether it’s greater compensation, greater time off, or anything else – makes every difference in how “rewarding” you find your career. Gaining maximum rewards while taking minimal risks is what business is all about. But it takes more than luck to make that happen. It takes forethought, care and prudence, the essential ingredients in good negotiating.

Always be proactive. Always be creative. Always be persistent. Always be aware. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what our Quality Vs. Power™ Method is all about.

A note about our Actual Case Histories : In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.