Question: Hi, Alan. I have an employee working for me as a gymnasium instructor between 15 and 30 hours per week as required by the business, on a casual basis, without a written contract, for the last four months. He is always available as I require when I give him one week’s notice.

I have now discovered that when he is not working for me, he works on a casual basis for a company in direct competition to me.

What are your thoughts on this? Best regards. 

Seamus
Waterford, Ireland

Answer: Dear Seamus: As you might know, I usually do not give advice, counsel or suggestions to employers, but your note encouraged me to make an exception.     

1. If your employee does good work, and meets your needs, you would likely want to retain him. More and more, employers are coming to understand that their business success requires that they hire and retain the better – if not best – employees. From your letter, you seem happy with your employee, and from how you have described him, he seems to be a good performer, flexible, and conscientious. What more could you want?

2. If you want a “commitment” from your employee, you have to give a “commitment” to him. I hope you don’t feel that your employee has been “disloyal” to you or your company because, when you don’t give him hours to work, he gets hours to work from your competitor. “Commitments” run both ways: you generally do not get them unless you give them, as well. 

3. Since your competition also seems to find your employee to be helpful to its business, it seems that the two companies may well be – or become – in competition for the employee’s services, too. I’d say that not only are you and your competitor in competition for customers, but you are also in competition for those employees who help you attract and retain customers. At the present time, everyone seems comfortable with the flexible arrangements, but chances are, sooner or later, someone will want more hours or different shifts that will likely upset the present comfortable arrangement. When that happens, you might just lose a valuable employee.

Don’t forget: if he is good with customers, and you either fire him for alleged disloyalty, or do not treat him well, then when and where he goes, his customers may follow him, perhaps right into your competitor’s gymnasium.

4. You might try demanding he sign a non-compete agreement, but I doubt that will work. My experience leads me to expect that most employers in your shoes would be tempted to insist that the employee sign a non-compete agreement, in this way locking him away from working for your competitor. Non-compete agreements rarely work, often backfire, and might just drive your good employee to quit and go to work for your competitor.

5. My suggestion: Treat him better than anyone else would – especially your competitor – and chances are you will keep him, and get the best from him, including loyalty. There is an old saying, “Pay peanuts and you will only hire monkeys.” In life, in business, and in the workplace, you can pretty much count on one thing: you get back what you give.  

In sum, Seamus, a good employee is hard to find, and harder to keep. Ask your good employee what motivates him, and then go about motivating his good performance, his good attitude, his flexibility, and his loyalty. Those are my thoughts. I hope you will give them consideration.

And, thank you, for writing in from Ireland.

My Best,
Al Sklover

P.S.: Don’t forget: we offer Model Letters, Checklists and Form Agreements for almost every workplace navigating and negotiating need you may have. Just  [click here.] 

Repairing the World –
One Empowered and Productive Employee at a Time ™   

© 2012 Alan L. Sklover, All Rights Reserved.

Note: A recent blogpost entitled “Where Can I Find Niches to Further My Career?” brought forth a nice – though brief – comment from one of our loyal readers:

“Brilliant article! Thank you!”  

Joyce Behr, Esq.
Farmingdale, New York

Dear Joyce,

As I have said before, THANK YOU for your supportive feedback. As an accomplished attorney, author and recruiter, your words are so very much appreciated, and respected. I only hope to continue to warrant your support.   

Very Best,
Al Sklover

Question: Alan, I have been employed for over one year in a temp staffing agency. I have reached my limit in having to discriminate against people of color, and older people, and now pregnant applicants. Because I will no longer follow the temp agency’s “guidelines” for who to hire, my job is now in jeopardy.

Already two employees are suing the company for their outright discrimination. I have been working in temp staffing agencies for a long time, and this is by far the top one when it comes to discrimination. I have a ton of email in which I am told the “kind” of applicants to hire. There is good reason to believe I may soon be replaced, and on trumped-up charges.

Now I feel forced to quit. This agency is pretty big, and I am scared of retaliation. Please – what can I do? 

Tired of Discrimination
Milwaukee, Wisconsin  

Answer: Dear “Tired”: Your situation is definitely one that calls for some strategizing, and action. Here are my suggestions:     

1. First and foremost: Don’t fret; make a plan. In any difficult situation – and I would definitely describe your situation as difficult – we have a choice to make: fret or plan. To help yourself, and to gain the best treatment possible, planning is the way to go. There are several steps that can be taken as part of your “self-protection plan.”

2. Understand that no one can help you if you don’t help yourself, and helping yourself will take some courage. Imagine asking a doctor to help save your life, but saying to that doctor “Doctor, please save my life. But understand that (a) I am a very busy person, (b) I don’t want to feel any pain or discomfort, and (c) I want to make sure that I don’t have any risks from any medicine, procedure or operation.” Do you think that would be reasonable? Of course not. Well, solving this problem at work may require dealing with fear of retaliation, and some discomfort, and dealing with some risks, as well. But not dealing with a situation like yours is likely to bring about greater problems, not less.

By the way, if you are (a) unhappy, (b) about to be fired, (c) and ready to quit, do you really have anything to lose? You know, in negotiation there is a saying, “The person with the least to lose has the most to gain.” Think about it. 

3. Consider filing a formal complaint with the state and federal employment rights agencies in your city. What you describe is (a) illegal employment discrimination, and (b) illegal retaliation for objecting to that illegal employment discrimination. Our society has decided that these problems are so important that both our states and our federal government have established agencies to help people in your situation. These agencies are generally good at what they do and most employers are concerned – sometimes even afraid – of the potential power they wield. If you file a formal complaint with one of these agencies, you will be somewhat “protected” from further abuse and retaliation because how your employer treats you afterward will be “under a microscope.”

The Wisconsin Equal Rights Division (part of the Wisconsin Department of Workforce Development) is the state agency that can help you. They have a Milwaukee office at 819 North Sixth Street, Room 723, Milwaukee, Wisconsin 53203. Their phone number is (414) 227-4384. Their website address is http://dwd.wisconsin.gov.

The Milwaukee District Office of the federal Equal Employment Opportunity Commission (“EEOC”) has an office at 310 West Wisconsin Avenue, Suite 800, Milwaukee, Wisconsin 53203-2292. Their phone number is (800) 669-4000. Their website is www.eeoc.gov/field/milwaukee.  

4. Though you are concerned about retaliation, I suggest you send a respectful email to your employer’s HR department, objecting to what is going on, and mentioning that you have been in touch with the state and federal agencies. If there is one thing that so many people don’t understand, it is that they are safer from retaliation if they complain about the retaliation, in the right way, which is always by email.

Imagine if a neighborhood bully hits you every time you see him. Is he more likely to stop if you have told the police? If you have hired a bodyguard? Either way, I think yes. That is the equivalent of standing up to an employer’s abuse, humiliation and discrimination. In my experience, it is more likely – no guarantees, though – that retaliation will not take place if you have filed both (a) complaints with your employer detailing what you have experienced, and (b) complaints with state and federal agencies, and your employer knows that you have.

We offer a Model Letter entitled “Pre-emptive Anti-Retaliation Letter to Board Chair” for this purpose that you might find helpful to say, in effect, “What the company is doing is being watched.” To obtain a copy, [click here.]

5. Speaking of “bodyguards,” you might also consider getting to know a local employment rights attorney. Contacting and having an initial consultation with a local employment rights attorney may prove helpful, on several levels: (a) you may be able to gain valuable information, as your attorney will likely have experience with local laws, in local courts, against local employers, (b) it may give you added confidence knowing you have someone “in your corner” available to you who is on your side, (c) your employer might be more reluctant to further retaliate against you if it knew you have someone on your side, and (d) if you are, indeed, further retaliated against, you would have someone available to you to take quick action to remedy the situation.   

If you would like to obtain a list of five or more attorneys in Milwaukee who are experienced in helping employees with employment rights issues [click here.]

6. If you don’t get this resolved rather quickly, I suggest you consider an “Involuntary Resignation.” As you may know, I have sort of “invented” a new concept called “involuntary resignation.” This means that you are leaving your job, not voluntarily, but “involuntarily.” By making a written email record that you have been forced to resign due to the circumstances, and that this is an “involuntary” resignation, this can preserve your right to collect unemployment insurance benefits, to later sue if you decide to do so, to get severance, and to any other legal rights that may arise – now or in the future. For you, “Tired,” this should be far better then simply resigning.

If you would like to view our free YouTube video that explains “Involuntary Resignation,” just [click here.] 

If you would like to obtain a Model Letter that you can adapt and use to “Involuntarily Resign,” just [click here.]

“Tired,” no one can guarantee any of us that life will be easy. But, if you make a plan, follow your plan, and “stick to your guns,” life will be at least a little “less un-easy.” Standing up for yourself is never an easy thing to do, but once you get the hang of it, others can tell you are not someone they would be smart to abuse. I wish you good luck in doing so. 

My Best,
Al Sklover

P.S.: Need Business Cards, Stationery, Invitations or Photo Books? Just click our homepage display ad for VISTAPRINT.com. Their commissions help us continue to publish our blog.

Repairing the World –
One Empowered and Productive Employee at a Time ™   

© 2012 Alan L. Sklover, All Rights Reserved.

Question: My question relates to a drain located in the small office where I work. There is a drain of some sort in the back room that emanates the smell of sewer gas. My nose burns by the end of the day, and my eyes get very irritated. I have complained about the smell twice and everyone in the office – the two owners, their wives and another employee – ignore the smell and accept it.

This is my fourth week on the job, and it is a small office. What steps can I take to have this problem rectified? Am I in a position to tell them that I will only work from home until the drain is fixed? Can I pursue legal action if they fire me? It is a very small company, and I would hate to pursue legal action, but I am trying to conceive, I have chronic sinusitis, and this can’t continue. My lungs feel heavy, too.

Thanks, in advance, for your help.  

Jeanna
Chicago, Illinois

Answer: Dear Jeanna: I’m sorry to hear of your predicament. There should be things you can do. Here are my thoughts:    

1. While health must always be your first priority, I acknowledge that income can be a matter of “survival,” as well. Surely you will understand that health must be your first focus, because without your health, you don’t have much. This is perhaps doubly so when you are trying to conceive, for what happens in the earliest times of pregnancy can affect your child’s health, as well. If at all possible, we all need to try to keep that in mind.

2. When matters of workplace health and safety arise, we first consider state and federal workplace health and safety agencies. This is one of those areas of law that I always consider referring people to the  applicable state and federal agencies, for several reasons, chief among them: (a) They are experts in what to do to address issues that might affect workplace health; (b) their staffs are usually quite knowledgeable about both health issues and what employees can do under applicable law; (c) they are scientifically equipped to determine if the gas is truly harmful, or dangerous, which it may just be; and (d) I have found the staff members of these agencies to be unusually concerned and caring people; after all, concerns about employee health are what motivated them in the first place to take the kind of jobs they’ve taken.

For you, I have located Edna Lubuguin, who is the Indoor Air Quality Specialist for the Chicago office of the Illinois Department of Labor. She can be reached at (312) 793-1825 or by emailing her at edna.lubuguin@Illinois.gov. I suggest you review www.state.il.us.

I’ve also located the Region 5 (Chicago) office of the U.S. Occupational Safety and Health Agency (“OSHA”). They can be reached at (312) 353-2220, or through www.osha.gov.  

3. Unless the Illinois Department of Labor suggests otherwise, I suggest you call in sick, and email your employer a pleasant and respectful note outlining what you’ve told me, and asking if you can work from home in the meantime. The idea behind this suggestion is that it is very important for you to make a “record” of (a) the problem; (b) your respectful request that it be addressed; (c) your respectful request that you be permitted to work from home for health reasons; and (d) that your absence from the office is not without good reason.

If you are comfortable doing so, you might mention your chronic sinusitis may be a kind of “disability,” and for this you may need an “accommodation” by being permitted to work from home. May I suggest that it might not be a wise idea to mention that you are trying to conceive at this time.

This will help you whether (i) you need to apply for unemployment, (ii) you discover you have legal rights for any firing, and (iii) if your health suffers, and you cannot work, your probable right to Workers’ Compensation and/or Short Term Disability benefits.

You may be especially glad you did this if health concerns related to this gas arise some time in the future, long after you are not working there anymore.

4. If you don’t get this resolved quickly, I suggest you consider an “Involuntary Resignation.” As you may know, I have sort of “invented” a new concept called “involuntary resignation.” This means that you are leaving, not voluntarily, but “involuntarily.” By making a written email record that this is an “involuntary” resignation, this can preserve your right to sue, to get severance, and to any legal rights that may arise – now or in the future.

If you would like to view our free YouTube video that explains “Involuntary Resignation,” just [click here.]    

If you would like to obtain a Model Letter that you can adapt and use to “Involuntarily Resign,” just [click here.]   

5. Especially because health issues are involved, I might also suggest a consultation with a Chicago-area employee-rights attorney. I strongly encourage employees to do all they can on their own before considering consulting with an attorney. However, because matters of health – and possibly the health of a newborn, someday – might be involved, I do encourage you to seek at least an initial consultation with local employment counsel.

If you would like to obtain a list of experienced “employee-side” employment attorneys in Chicago, simply [click here.]

Jeanna, you are in a difficult spot. I hope this has been helpful, and that your health concerns are soon resolved. I wish you, too, the best of luck in every other area of your life, as well. 

My Best,
Al Sklover

P.S.: Want a Blog of Your Own? Develop an “Internet Presence” of your own. It’s a fun, challenging, and rewarding thing to do. And it might even help you get a new or better job. We can help you. Just [click here.]

 Repairing the World –
One Empowered and Productive Employee at a Time ™  

© 2012 Alan L. Sklover, All Rights Reserved.

“Every spring is the only spring – a perpetual astonishment.”

- Ellis Peters

There is something truly astonishing in the universal birth and renewal that takes place each spring. From slumber and retrenchment, everything decides – all of a sudden – to simply come alive. I urge you to participate in that process. At work, and in other parts of your life, take even one small step to make something new happen – create a new project, renew a dormant relation, or begin a positive habit – and you, too, will likely astonish yourself and others with your own spirit of personal rebirth and renewal.

© 2012 Alan L. Sklover. All Rights Reserved