Question: The company I worked for eliminated my position, and gave me a severance package. My title was Manager of Customer Service and Collections. I’m now seeking a position with a direct competitor of that company.

This prospective company asked me if I had a “non-compete” provision in my severance agreement. It didn’t exactly, but it did say (a) I have to continue to follow the Employee Handbook, (b) I must maintain confidentiality of the company’s trade secrets, and (c) I can’t try to take their employees away from them for one year.

This is my question: Since my position was eliminated, and I was severed from the company, can they enforce any non-compete clause? If they can, how could I ever work again in this industry? Thank you.

        Suzanne          
        Phoenix, Arizona         

Answer: Your question has three answers, all three of which should please you:

First, there is no reason whatsoever that your “confidentiality” clause should pose a problem for you. By law, every former employee – even if they did not sign anything – cannot share or use any of a former employer’s “trade secrets” after leaving a job, or being let go. That’s because “trade secrets,” which are bits of information that the company has put together through expenditure of time and effort, that gives it a business advantage, are private property. The most common one: a list of its customers. Just as you can’t take the employer’s computers when you leave, you can’t take their trade secrets either. I see no reason at all that this should be a concern for you.

Second, there is no reason whatsoever that your “non-solicitation of employees” clause should pose a problem for you, either. This simply restricts you from trying to lure employees of your former employer to resign, and come to work for your future employers. In 27 years in this work, I’ve never once heard of an employee who had to take another employee with them to a new employer. I see no reason at all that this should be a concern for you.

Third, it is rather unusual for an Employee Handbook to contain legal provisions that would be a problem for you in the future. While sometimes employers “bury” or “hide” non-compete provisions in employee handbooks, it’s pretty unusual. However, it should be a simple thing for you to email the Head of HR at your former employer with this message: “Hello. I used to work for the company. I understand the Employee Handbook might contain things I might have to remember and honor. So, would you please send me a copy. Thank you.” It should be that easy to get a copy.

These things are NOT non-compete agreements. A non-compete agreement says, in effect, “I won’t work for a competitor for a period of time.” So, you should feel free to respond to your prospective employer, “No, I did not sign a non-compete agreement. I am totally free to work for you.”

As a final comment on your question: In most states (and though I am not admitted to practice before the Courts of Arizona) and I believe that includes Arizona, even when your position is eliminated, or you are laid off, non-competes are enforceable. It is wrong, and I am considering trying to lead an effort to make them as illegal as slavery, but as of today, that is the law.

So, all in all, that should “make your day.” Thanks for writing in. Hope you are enjoying our blog, and that you’ll tell your friends about it.
         

Best, Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

Watch the video on YouTube: http://www.youtube.com/watch?v=wanvMfszPco

“Dignity is fighting weakness and winning.”

- Lola Falana

ACTUAL “CASE HISTORY”: Patty had been the Laboratory Director of a large regional blood bank. For six years she had been responsible for safe, accurate and efficient testing of blood samples, blood drives and donations, and blood distribution to hospitals in a four-state area. She was a seasoned professional at what she did, enjoyed a good reputation, and enjoyed her work.

Two weeks before calling us, Patty had resigned from her job, in disgust. Though she had never done anything like that before, she just felt she had no alternatives: sanitary standards at the Laboratory’s central location, and its satellite locations, had regressed so much and so rapidly that she was afraid patients were in danger. This followed the outsourcing of housekeeping functions in a seemingly ill-advised cost-cutting measure. She had notified corporate headquarters about her concerns, to no avail.

Patty sought our help in preparing for her upcoming job interviews. What could she say about her reasons for leaving? Should she be honest? What if she gave a false reason, and it was later shown to be false? Could she be accused of “bad-mouthing” her former employer? It was in preparing for these questions, that we learned that Patty had not applied for unemployment insurance benefits, as she believed that, as someone who had “resigned,” she was not entitled to do so. We advised her to apply, nonetheless, because, though she had resigned, she had “good reason” to do so.

Sure, enough, Patty did apply for unemployment, and was found eligible for the benefits her state afforded: $525 per week, for 26 weeks (totaling almost $14,000). Though the assistance did not make her rich, it surely did help pay the bills during her period of unemployment, which lasted much longer than she had expected.

LESSON TO LEARN: Unemployment insurance benefits are valuable and should not be forsaken. As a society, we set up our unemployment insurance system to “cushion the blow” of unexpected job loss. Every employer is responsible for contributing, and every employee is potentially eligible to receive it. Failing to take advantage of what you are entitled to is not a wise thing to do.

WHAT YOU CAN DO: There are many misunderstandings about unemployment insurance benefits. Here are the 12 Basics You Need to Know:

Continue Reading. . .

“High finance isn’t burglary or obtaining money by false pretenses, but rather a judicious selection from the best of those fine arts.”

- Finley Peter Dunne

Former Federal Reserve Chairman Paul Volker says that the only truly valuable “financial innovation” in the past 25 years was the ATM machine. So long as we continue to believe that others with fancy offices and marble floors have only our interests at heart, the “burglary” and “false pretenses” will never end. Don’t forget what they call a “great sell” on Wall Street: “Putting lipstick on a pig.” Keep your eyes wide open and your wallet tightly in your pocket.

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

Question: Hello. I have worked for our county government for 10 years, I will be handing in my “involuntary resignation” tomorrow because I was recently informed that they were doing away with my job duties, and replacing them with HR Officer responsibilities. Even though people in this position usually make twice what I do for these duties, they have not offered any reclassification or pay raise. I think it is wrong.

Can they make me sign a resignation form that says it is “voluntary” to receive my severance monies that are coming to me as an employee for 10 years? Thank you!!

        Karen         
        Dayton Beach, Florida
 

Answer: Hello, to you, too. Sorry to be the bearer of bad news, but in order for employees to get separation (or severance) monies, it is almost always required that they sign a document by which they “offer their resignation voluntarily.” Of course, this is a fiction, untrue and unfair. However, it is considered the “thing” you are giving them in order to get the monies that are due you.

That is, for want of a better word, the “deal.” If, though, you feel that you are being dishonestly pushed out of your job, or illegally being discriminated against, or in some other way being denied your job unfairly, you can try to negotiate the amount of your severance. If this is the case, you might read our articles and watch our videos on “How to Negotiate Severance.”

My hopes go out to you for a quick rebound to another job.
         

Best, Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

Question: I have four sons, two of whom have been diagnosed with Epilepsy. One is Autistic. I work full-time at their elementary school in the Special Education department.

The stress of having multiple children with special needs is slowly beginning to wear me down physically and emotionally. I spend a lot of time at doctors’ appointments, and taking days off for these appointments, and to take care of my children.

I want to ask for a leave of absence under the federal Family and Medical Leave Act (“FMLA”), but I’m not sure where to begin. I wonder if my employers will understand, or how they will treat me after, when I return to work. What are my rights? How do I begin the process? What information will they require of me? Help!

        Exhausted Mother         
        Bullhead City, Arizona

Answer: Before I offer legal information, I would like to express to you my admiration for your being so dedicated and loving a mom as you obviously are. Your love, care and devotion are so very much “what life is about, or should be,” words cannot express it.

First, as to information that can help you: I suggest you review a Newsletter article in Section D of our “Newsletter / Q & A Library” entitled: “Special Issue: Family and Medical Leave Act (FMLA) – 50 Things You May Need to Know.” It has pretty much every thing you seek, including information on eligibility, application, certification, and even possible retaliation. You really ought to read it.

Second, I also suggest you consider going to the “Private Library” of our blogsite, and look up Model Letter Job Issues 10: “Model Memo Asking for FMLA  Information.” It is a model of a memo you should send to Human Resources to get the process started.

Third, these days most employers are very familiar with FMLA, and how it operates. It is a great law, and is being used more and more by people in your situation, that is, with loved ones who need their time and attention. While I can’t predict how you may be treated when you return from a FMLA leave of absence, it is unusual in my experience to see employees treated negatively afterwards, for two reasons: it is against the law to retaliate against someone for exercising their FMLA rights, and because it is, slowly but surely, becoming a regular part of working life to have colleagues take time off to care for their loved ones.

You may be a candidate for what is called “intermittent leave” under FMLA, which means that, instead of taking off 12 weeks in a row (totaling 60 days off), you might take off two days per week for 30 weeks (which also totals 60 days off.)

So get going:  Our Special FMLA Issue: “The 50 Things You May Need to Know about FMLA” should really be your next stop. I hope this is helpful, and tonight I will pray for you and your boys.
       

Best, Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

Question: For ten years on my job, I never once had a bad review. Then, a few months ago, shortly after I was assigned to a new manager who is based in another state, I was placed on a Performance Improvement Plan (“PIP”).

According to the PIP, I have been “unresponsive” to our internet users who call our company. When I asked for the source of that allegation my manager would not give it to me. When I asked when I was “unresponsive,” he wouldn’t respond.

My PIP requires me to keep a weekly log of calls that come in, and my interaction with the callers. After one week, I provided my log to my manager, and got no feedback. After the second week, I provided my log to my manager, and asked him for feedback. None came. I also asked for a “progress report” from him, but he won’t give me one.

I think he is trying to get rid of me. My PIP period is over on February 18th. Any ideas?

Joanne
Modesto, California

Answer: What you describe is quite common: your manager is acting as if he or she does not want you to succeed at your Performance Improvement Plan.

You need to make a Written Record of (a) your manager’s refusal to give you information about his allegations of your poor performance, (b) your manager’s refusal to give you feedback about your performance since being placed on your PIP, and (c) your conclusion that he is making a mockery out of this process, in violation of Company policies and rules.

Your written record of “Manager PIP Sabotage” should be in an email, contain copies of your PIP logs, hopefully accompanied by copies of emails from you to your manager that went unanswered, and preferably accompanied by a copy of your employer’s written policies regarding Performance Improvement Plans (if there are any.)

You need to send your written “Record” of your Manager’s Sabotage of Your PIP to your company’s Head of HR and, perhaps, your company’s CEO.

You should mention in your written “Record” what you wrote to me: in 10 years, your performance was never attacked as it has been here, by a new manager who barely knows you.

You should note that this is a kind of fraud upon the company, and should be both (a) withdrawn, and (b) investigated by an honest, objective person from outside the company.

Remember that your “Record” needs to be specific about what happened, respectful in every way, and clear in what you want: the PIP withdrawn and investigated.

You might want to review the Newsletter / Q & A articles on Performance Improvement Plans in our Blog Library, and our Video on the subject.

In all events, get going. You have little time to lose.

I hope this is helpful. As a “victim” of a Performance Improvement Plan, you have to do a bit of work to stand up and push back. The good thing is that – since very few people “survive” a PIP, you have nothing to lose, and everything to gain.

Please know that I hope this is helpful to you.

Best, Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

“There are eight rungs to charity. The highest is when you help a man to help himself.”

- Moses Maimonides

Reaching out, and raising up, preferably anonymously, is the essence of good deeds. Doing so once a day, every day, with one person at work, without expectation of reward, will help you more than you ever might imagine.

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

Question: Good Morning, Sir. I am facing a big problem. I have worked for my employer since 1999. I have successfully completed every project ever given to me, and have been recognized as deserving of a raise by my Superiour.

For two years now I have been promised a promotion. I was even given the date for the promotion, but it arrived and went by without my getting any promotion.

When I asked my supervisor when my promotion will come through, he told me “Have faith – it will happen.” When I asked my General Manager he told me that it is well-documented that I deserve a promotion, but that right now it is on “Hold.”

I do not know what to do. I feel like there is a “ceiling” above me that I cannot break through. Do you have any advice?

Muhammad
Doha, Qatar

Answer: I have received many questions just like yours: (a) earned a promotion, (b) promised a promotion, but (c) did not receive a promotion. Here’s the ten best pieces of advice I can offer:

1. Instead of using your “lips” to ask for a promotion, use your “fingers.” By this I mean make your request, and your case, in writing – preferably by email – and not by spoken words. Spoken words can be forgotten, or mischaracterized, etc.; written words cannot.

2. You must remember that people are more motivated by their own interests, and less motivated by yours. So, suggest ways that your being promoted would help your supervisor and your General Manager.

3. As for a few examples, suggest how your promotion would (a) make your team more productive, (b) make your clients happier, (c) help achieve cost reductions, (d) take over burdens presently shouldered by your supervisor and General Manager, (e) bring in greater revenues, and/or (f) make your supervisor and General Manager look better to the company’s Board of Directors.

4. Without appearing aggressive or threatening, you might remind your supervisor and General Manager that (a) they agree that you deserve the promotion, and (b) you were given a date to expect it, but were disappointed.

5. You might ask your supervisor and General Manager in your email, “Is there something more I could do to increase my chances of prompt promotion?” You just might learn that one or two achievements are the only things in your way.

6. You might also ask your supervisor in an email, “Is there anyone you suggest I might speak with about this?”

7. If you want to try something “daring,” consider presenting this question to your supervisor and General Manager: “I want this promotion so much, could I have the new title and responsibilities, even if I did not right away get the raise in pay that is supposed to come with it? I am certain that, even if I must wait until company finances are better, I would prefer the improved title and new responsibilities.” It just might work.

8. Ask for a commitment – in writing – for either a date when you can expect the promotion, or a condition for your receiving it, such as “when the next manager position becomes available.”

9. You might also send a copy to your employer’s Head of Human Resources, and ask whether either (a) internal mentoring might be possible, or (b) assistance with your career path may be available.

10. Finally, in all you do, remain 100% respectful. Never show annoyance, impatience, or anger. Maintain composure and professionalism at all times. Bear in mind that, in all things important, “Perseverance makes the difference.”

Two general suggestions are in order, as well:

A. Consider reviewing our many Newsletter Articles and Q & A’s on New Jobs and Promotions in our Blog Library.

B. Second, you might consider purchasing from our “Private Library” our “Model Memo Requesting a Raise or Promotion” to use as a sample, or template, for your writing efforts.

In all you do, I wish you only the best. Thanks for writing in. I truly hope you will let us know how things are going in your quest.

Best, Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.

Question: Is there a federal law that states that you have a right to send out resumes to potential jobs even if you are currently employed somewhere else?

Karen
Bluffton, South Carolina

Answer: No, I don’t think there is any federal law – or any state law, for that matter – that says that you have a right to send out resumes while you are employed. At the same time, I don’t think that any law exists that says you cannot do that. The law is silent on the issue.

As the “law” is silent about this, it is entirely legal for an employer to say it will fire you if you look for a job elsewhere, or if you interview elsewhere. That’s because, unless you have a written employment contract that says you have a right to a continued job, your relation with your employer is what is called “at will.” With an “at will” employment relation, either you or your employer can end the relation for any reason that does not violate the law. As noted above, an employer would be “within” the law to fire you for that reason.

Sound unfair? Perhaps. But you have the same right as the employer, that is, to end the relation for any reason that is not “illegal.”

Still sound unfair? If so, you are in good company. Many people think that the way these things work in Europe – where employment is considered an important relation, worthy of legal protections – is the way things should work here. Perhaps one day, but not yet.

This is probably not the “good news” you were hoping to get, but it’s the way things are. Hope it helps, in any case.

Best, Al Sklover

© 2010 Alan L. Sklover, All Rights Reserved.