Question: I recently purchased your Master Checklist for Employment Items to Negotiate from your “Model Letters” page. It is excellent, and a terrific roadmap for any executive changing jobs.

One point that specifically caught my interest was your addition of Guarantees of Employer Performance, including (a) Surety Bonds, (b) Letters of Credit, (c) Annuities, and (d) Parent Companies.

Are these realistic, and under what circumstances would a prospective employer release these?

Cary White
(City Not Listed)

Answer: Cary, that is a great question. To answer it, let me start by repeating what I say so often: what gives an employee leverage to get the things he or she wants from an employer is the simple notion of  “Perception of Value.” (This is explained in greater detail in my newsletter entitled “Locating Leverage with Your Boss,” which you can view by [clicking here].)

In my decades of helping people negotiate the terms of their employment, I have always found that if you have enough “Perception of Value” leverage, then you can get almost anything you want, including the very guarantees of employer obligations you refer to.

That is because every employer sees every prospective employee as a “human resource,” that is, someone who might cost X each year, but be worth 2X per year – or even 10X per year – to the company.

It’s important not to confuse Real Value with Perception of Value. In the employment marketplace there is no absolute real value, as there is with an ounce of gold, which today is worth about $1,200 per ounce. That is real value. The special skills, knowledge, relation and insights that make perception of value in employment are not so easily measurable. But they do determine the “price” of hiring the right person.

How about a few examples:

• Would you give a personal guarantee of salary to someone who you believed could increase your company’s sales by 500%?  Probably you would.
• If you were about to hire the best football player of all time to be spokesman for a sporting goods company, and he was asking a seemingly very low price for his services, would you be willing to “back that up” with a letter of credit? Good chance you would.
• If you manufactured laser machines, and you could hire the one person in the world with the insights on how to make them more powerful, but he asked you to post a surety bond to secure his guaranteed $25,000 bonus, I suspect you would do so in a minute.

Get the idea? In the right context, for the right “human capital” that represented the greatest “perception of value,” anything is negotiable. Incidentally, in my representation of (a) many senior executives, (b) several media celebrities, and (c) a few sports figures, I have successfully asked for each of the items you mentioned.

These are only examples, meant to illustrate the point. Everyone is capable of achieving security for payment and guarantees of performance if their perception of value is first there.

Hope that makes sense. It’s a simple notion that can be hard to grasp. Thanks for writing in.

Best, Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

“If you see a strange thing, and do not regard it as strange, its strangeness will vanish.”

-Chinese Proverb

At work, new people, new things and new ways may strike you as “strange,” “different,” even “off the wall.” But just as you should not “judge a book by its cover,” don’t be afraid to look “inside” that new person, new thing, or new way of doing things. Once you do, you may just discover a new “best friend.” Don’t avoid “strange” things; instead, discover the value, advantage and even treasure they may hold.

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

Question: I was relieved from my job today for no reason, only to find out it was because I have a website to start a business of my own on the side.

There is no conflict of interest between my website and what was my position.

What rights do I have? 

         S.E.   
         Grapevine, Texas

Answer: S.E., your rights in this situation, if you have any, depend on a few different factors.

First, some background: Generally, employers can terminate their employment relations with an employee for any reason – no matter how trivial, or even nonsensical – so long as it is not a legally prohibited reason, such as illegal discrimination, illegal retaliation, violation of a law, or breach of a contract.

While that may seem unfair, most people find it pretty fair, because employees can do the same thing: terminate their employment relations with their employer for any reason – so long as it does not violate a contract to do so.

All states have laws prohibiting firing employees because they engage in religious activities outside of work. And there are some states that have laws protecting employees from being fired for engaging in “social activities,” such as membership in charitable or civic organizations. But I don’t think I know of any state that has any laws protecting employees from being fired for engaging in business activities. In my experience, the reason employers don’t like their employees having “side” businesses is that they think it will distract them from their “day jobs.”

So, it would seem to me that, unless (a) you had signed a contract that permitted you to engage in your side business, (b) you were specifically told you could engage in your side business  without being terminated for doing so, or (c) your side business was part of your religious practices, or necessary for your ethnic identity, then you probably don’t have any “rights” to fight back.

Wish I had better news, but I don’t. I do hope that your new business might be up and running soon, as I believe self-employment can be a very positive and rewarding experience.

Thanks for writing in.

           Best, Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

Dear Alan:

I saw your video regarding Performance Improvement Plans and have to say I am very impressed. Also, I got a few people who view your site and a lot of them want to see a place where they can donate money for your service. Thanks.

Chong
City Unknown

Dear Chong,

Thank you so very much for the compliment, and for telling others about our blogsite and videos. The fact that we hear from people like you, and your view that we are helping people worldwide in standing up for themselves at work is very motivating for us. As to “donations,” we appreciate the offer, but there is only one kind of “donation” we would appreciate: telling others about our blogsite, and considering subscribing them so that they can see for themselves how to best stand up for themselves.

With appreciation, Al Sklover and Firm

In response to your “HR Interview Memo,” I most likely would have contemplated this was helpful two or three years ago, yet it’s interesting how age evolves the matter you respond to things. Thank you for the weblog article. It truly is great to discover something sensible now instead of the usual rubbish disguised as blogs and forums on the internet. Regards.

Enrique
City Unknown

Dear Enrique,

We pride ourselves on being focused on peoples’ concerns and needs, and assisting and supporting them in an honest, sincere, caring fashion. If that “quality” comes through to you that is the best thing in the world to us. We seek to make the world a better place, and with positive feedback like yours, we grow more confident that we are on the right path.

Thank you, Sincerely, Al Sklover and Firm

Question: How can a firm delay acceptance of a resignation after the expiration of the notice period? I gave notice of resignation but my employer has ignored it. I have kept working, without complaining.

What happens if, after 10 months of working, can it be suddenly accepted? Would that be legal?

       P.R.  
         Kathmandu, Nepal

Answer: P.R., when it comes to giving notice of resignation, once the notice period has expired, an employee does not have to get “permission” to depart. He or she can simply gather his or her belongings, and start a new chapter in life. 

What frequently happens is that employers permit – even encourage – employees to remain on the job until their services are not needed anymore. For example, an employer might encourage an employee to remain working until his or her replacement is hired, or even until his or her replacement has been fully trained. Sometimes, employers wait until the departing employee has actually trained his or her own replacement.

Once an employee is no longer a necessary “human resource,” an employer usually then terminates the employment relation, often without any notice at all. This can be harmful to an employee, an employee’s resume, and an employee’s finances.

To answer your question directly: an employer can even wait 10 months to “accept” an employee’s resignation.

When it comes to resigning, it’s best to do it on your own best timing. Don’t wait for approval, permission or recognition. As the Nike sneaker commercial says, “Just do it.”

Thanks for writing in from so far away. If this has been helpful, I hope you’ll tell others in Nepal about our Blog. Whether you’re in New York or Nepal, “We’re all in this together.”

           Best, Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

Question: My part-time job paid me a base salary plus a 3% commission on all sales. I was recently fired due to taking  too much time off for the death of my father and my knee surgery.

Am I entitled to my commissions on sales that occurred before my termination? My boss says if the merchandise wasn’t delivered before my termination, I don’t get any commission. I say this is fraud and he owes me this either now or when the merchandise is delivered.

Who’s right? 

         Wendy 
         Allentown, Pennsylvania

Answer: Wendy, first of all, my condolences to you on the loss of your father. Having lost both of my parents, I sometimes think of the loss of a parent like the loss of an umbrella in a life full of rain.

As to your question: so much in law and in legal rights depends on “the facts,” and that is especially the case when it comes to employees and commissions.

For thousands of years – not that I am that old – employers and employees have argued about when commissions are earned. Is it when the sale is made? Is it when the goods are shipped? Is it when the goods are delivered? Is it when the payment comes in? Is it when the customer no longer has a right to demand a refund? In most instances, and in most states, the answer focuses on “What – if anything – did the employee and employer decide on this issue when they created the employment relation?” 

Though I am not licensed to practice law in Pennsylvania, I have reviewed the law there.

1. Did the Employer and Employee, Themselves, Discuss and Agree on this Issue? Like most states, Pennsylvania law first asks this question: Did the Employer and Employee agree, between themselves, when the commissions would be earned? If so, that is where to look for an answer about when commissions are considered “earned.”
 
2. If there is No Agreement on the Issue, the Law Looks at their Past Practices. Has this issue come up before between you and your employer? Between other employees and your employer? How this has been treated would then be how this instance of non-payment would be treated, as well.

3. If Past Practices are Unclear, Then “Custom and Usage” in the State and Industry will Govern. This is very hard to determine, and Employees and Employers will rarely, if ever, agree on this subject.

4. Fortunately, Pennsylvania Has a Tough, Employee-Friendly Law on the Subject. The Pennsylvania “Wage Payment and Collection Law” (often called the “WPCL”) which can be found in a law library, or online at Title 43 of Pennsylvania Statutes, at Section 260.1 and following sections.  The Pennsylvania WPCL does not create a right to compensation, but helps employees collect compensation when earned. The WPCL covers commission disputes like yours; it considers commissions a kind of “wages” covered by the law.

If, like in your case, there is a dispute about commissions due after employment separation, the Pennsylvania WPCL provides that the Employer must give written notice of the amount of commissions which the Employer concedes are due, and must pay that amount without condition. Acceptance of this amount by the Employee does not constitute a release of the balance of the commissions the Employee claims is still due.

The Pennsylvania WPCL has teeth when it comes to collection. If you are not in agreement with your former Employer about commissions you claim are earned, you can file a Claim with the Pennsylvania Secretary of Labor. If the Employer fails to pay the claim, or fails to explain to the Secretary of Labor why it feels it is not liable for the commissions claim within 10 days of its receipt of notice of the Claim, the Employer may be assessed an additional 10% of the Claim found to be due. You can also go to Court with a Commissions Claim; if successful, you may (no guarantee here) also be awarded attorneys fees, plus penalties.

Perhaps most importantly, under Pennsylvania’s WPCL, the officers of a company who are “active decision makers” can be PERSONALLY LIABLE for all sums due. In especially grievous non-payment matters, officers of an Employer can be held criminally liable for each offense by fine of $300 and imprisonment of up to 90 days. (Now that is teeth!)

5. So, Wendy, What Does This all Mean for You? If you don’t have an agreement or contract with your Employer on this issue, and you can’t come to resolution by compromise, I suggest you tell your employer you now know your rights, and those rights are pretty strong rights, at that. Tell him or her that you will file a WPCL Claim with the Pennsylvania Secretary of Labor, and in that Claim you will ask for all due you, plus penalties over that. Tell your Employer that, if necessary, you may also go to court, because if you win in court you may get your legal fees paid by him or her, too. Tell your employer, too, that he or she could even be held personally liable, and that his or her lawyer will probably back you up on that. As I always suggest, “Say it in writing, and keep it calm and respectful.”

It is my hope that this will be enough to get your Employer to do the right thing. When your employer knows you know your rights – and that other employees may learn them from you – he or she may be more reasonable.

6. What’s the Biggest Lesson? When it comes to commissions, try to get your “agreement” in writing, even if it is in an email, because emails are great proof of agreement.

Hope this helps. Really, really do.

Thanks for writing in!! If this has been helpful, hope you’ll tell others about our Blog.

           Best, Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

“I love the idea that Picasso used to just sit and stare at an empty canvas for 12 hours straight. If you keep staring at the canvas, the hope is something or someone will come to mind.”

- Al Pacino

At work, it happens all the time: you need to come up with a new idea, or a better way, or a solution to a problem. When nothing immediately comes to mind, don’t fret. Instead, give yourself the time and freedom to create, concoct and consider even the most outlandish thoughts. You can’t force creativity, but you can give it the time and freedom to happen. Do so.

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

“Once a new technology rolls over you, if you’re not part of the steamroller, you’re part of the road.”

- Stewart Brand

At work, it seems a new technological wonder “or complication” arrives daily. Just “yesterday” we began receiving “invitations” to Linked In, and then “today” we are told we must “migrate” to Microsoft Office 2010. Though keeping up with all the new technologies may be impossible, at the very least try to keep abreast of the technologies affecting your industry, and how they are likely to do so in the future. Each day put at least a little effort into understanding the new technologies around you. Remember that few employers are willing to employ a “technology-challenged” person, and there’s no law to protect the “techno-disabled.”

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

“I always wanted to be somebody. Perhaps I should have been more specific.”

- Lily Tomlin

At work, it is very much in your job-security and job-advancement interests to be known for some particularly valuable aspect of “human capital.” It might be a deeper knowledge of internal operations, a closer relation with the most important customers, or even the keenest insights into the probable future directions in your industry. At work, be known for something special, or chances are you won’t be known for long.

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

Question: I was assaulted at work by another employee. I went directly to the General Manager and told him what was happening. Then I went to my direct Supervisor to let him know that I was leaving early (there were two hours remaining in the workday) because I was shaking, and to defuse the situation.

As soon as I got home, I contacted the police, and filed a police report.

I ended up being suspended without pay for the following workday because they said I left my job. The other person involved wasn’t sent home that day, and wasn’t suspended like I was. My managers have told me that they don’t want me to involve Human Resources, but I insisted.

Now I am waiting for a meeting with Human Resources, but I feel my Civil Rights were violated because I did nothing wrong but leave to defuse the situation. What are my rights?  

         Cliff 
         Surprise, Arizona

Answer: Cliff, from what you have written, it is hard to believe you would be suspended without pay.

The only reason I can think of for your being suspended is that, although you wrote that you told the General Manager and your direct Supervisor you were leaving, you did not write that they had granted you their permission for you to do so. In fact, from what you have written, it sounds like the General Manager and your direct Supervisor did not, in fact, grant you permission to go home. That can be a very serious offense at work, no matter what the circumstances.

I am not saying what you did was not right under the circumstances. In fact, I think I might have done exactly the same thing you did, if I were in “your shoes.” However, “managers” must “manage” people. When “managing” people and groups of people, the number one issue, above all others, is “control.” I don’t mean this in a negative sense, but in a practical sense. Managers are responsible for maintaining “control” of the workplace, for several different reasons, often ones you and I might not think of.

• Perhaps the General Manager and your direct Supervisor had to, by company policy, immediately debrief you to find out exactly what happened to cause the incident, but you had already left the office. That could cause a problem.

• Perhaps the General Manager and your direct Supervisor had to, by state law, have you sign a statement prepared by them at the time of the incident, but you had already gone home. That could cause a problem.

• Perhaps the General Manager and your direct Supervisor had to, due to insurance requirements, ask whether you had seen any weapons, but you had already left work. That could cause a problem. 

• Perhaps the General Manager and your direct Supervisor had to, because of federal Occupational Safety and Health Administration (“OSHA”) regulations, have a person of your gender examine you for any signs of physical injuries, but you had already left the premises. That could cause a problem.

• It’s just possible your assailant was not sent home, or suspended, because the General Manager and your direct Supervisor did not have a written, signed report from you, because you had already left work. Because you were no longer at your work premises, it is possible your violent assailant could not be fired, and therefore continues to pose a danger to others. That could be a real problem. 

I’m sure, by now, you get my point: managers have things to worry about that you might not be aware of, and being an employee means agreeing to “let managers manage.”  It’s Rule #1, or close to it. 

You were smart to file a police report. You were smart to bring the matter to Human Resources; I hope you described the incident to Human Resources by way of email, because that would make a great permanent record. But leaving the workplace premises without prior permission – unless you really believed you were in real danger of imminent bodily harm, or critically needed to see a doctor – was not the best thing to do. You have many rights in the workplace, but they all depend first on your fulfilling your responsibilities to your employer, and it managers. And “letting managers manage” is one of them.

If you have an injury, you have a right under Arizona law to file a Workers’ Compensation claim for any medical costs and any lost income. You might even have a right to sue your assailant for any injuries. But your “rights” against your employer are slim to none, if you did not first observe that important “rule”: “Let managers manage.” If what happened to you happens again, consider staying put, insist on calling the police from your workplace, insist on being protected. But don’t leave without permission.

This may not be exactly what you wanted, or expected, to read. Nonetheless, I do hope it is valuable, helpful, and something you will keep in mind.

Thanks for writing in!! Hope you’ll tell others about our Blog.

           Best, Al Sklover

©  2010 Alan L. Sklover, All Rights Reserved.