On This First Night of Hanukkah – A Message for all our Friends, Regardless of Faith:

Hanukkah celebrates the miracle of “the light,” the miracle that it exists, and the miracle that it endures. Each of us can be a “light unto the world” in our own lives. Celebrate that light within you – and keep it alive. You will have something to celebrate each and every day, and so will all others. Be a light unto the world.

© 2011 Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“It is time to steer by the stars, and not by the lights of each passing ship.”

- Gen. Omar Bradley

At work, as elsewhere, it is so easy to get caught up – and dragged down – by the pressing details of each passing day. But you’ll surely lose your way if each day’s events are your life’s compass. It’s really important, every now and then, to consider the larger picture, the bigger vision, and the things that are really important to you, from a lifetime’s perspective. With those values in mind, the details fall into place, the demands are not so daunting, and the drama is not so distracting.

© 2011 Alan L. Sklover. All Rights Reserved

Question: I expect to be put on a Performance Improvement Plan (“PIP”) very soon after many years of employment with the same company with excellent performance reviews, except for the last two years with a new supervisor who did not like me from day one.

Can I just say “Skip the PIP and just terminate me?” I want to be terminated. I am of age to retire and start collecting Social Security and unemployment. I don’t want to go through the humiliation of a PIP, but don’t want to jeopardize collecting unemployment benefits as I believe I am entitled.

How should I handle my upcoming meeting with HR?

A-C
Morganville, New Jersey

Answer: Dear A-C: Your dilemma is a common one. Here is what I’ve learned over the years helping clients like you:

1. There is nothing wrong with your being frank with HR, so long as you do it (a) in writing (preferably in an email) and (b) carefully. If your sense is that you do not deserve the PIP, and you are amenable to leaving, that is an acceptable message to give to Human Resources, provided you convey that message (a) in writing and (b) carefully. You can discuss it at the meeting, but it is important that you confirm what you said in an email as soon as the meeting is over. You can send it to HR before your meeting by email, or send it to them after your meeting by email. Handing it to HR at the meeting is not a good idea, as it cannot later be proven that you did so.

2. The reason it has to be in writing is that there needs to be a written record of exactly what you expressed, and how you expressed it, because it is so important to you. Whenever my clients communicate with HR or their bosses on a subject of importance, I worry that (a) my client will accidentally say something they should not; (b) my client will forget to say something they planned to say; (c) my client will say something, but not say it clearly; (d) HR or their boss will not understand exactly what my client said; (e) HR or their boss will not remember all of the things my client said; (f) HR or their boss will not be honest about what my client said; (g) HR or their boss may say my client said it with a “bad attitude,” or “loudly,” or (h) there will arise some other issue about what was said, what was not said, or how it was said.

When something is expressed in writing, and sent by email, these potential pitfalls are drastically reduced, if not eliminated entirely.

3. By “careful” I mean (a) making sure it is not considered an admission that you have done something wrong, and (b) making sure that no one can say it was an offer to resign. (a) When discussing a PIP, it is important to be and remain clear that you do not think it is justified, that you have performed admirably, and that you have done nothing wrong. (b) When discussing a possible departure from employment, it is important to be clear that the email (and any related discussions) do not constitute a resignation itself. Instead, you should be very careful to say The PIP is not correct, but IF WE CAN AGREE ON ALL TERMS, IN WRITING, I would be willing to resign.

4. Terms to agree on include each item that is important to you about the (a) timing, (b) terms and (c) tone of your departure. Consider the several things that are important to you: so far you have mentioned (i) retirement, (ii) Social Security, and (iii) unemployment benefits. Any agreement must be protective of each of those three things, and any others you may feel are important.

Because this transition is quite important, you might be wise to consider the assistance of an experienced employment attorney in your locale. You can locate such attorneys on our blogsite, if you wish, by [clicking here].

A-C, thanks for writing in. And good luck in moving forward. Please consider viewing our YouTube Videos, and using the services of those advertisers you see on our homepage – they help support our efforts on behalf of employees worldwide.

Best,
Al Sklover

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

©2011 Alan L. Sklover, All Rights Reserved.

Question: My boss told me that they will have to terminate my employment, and I should look for another job. In my contract it says if they terminate my employment I get two months severance.

My question is this: if I find another job, and tell them that I have, will they still have to pay me my severance?                

R.K.
New York, NY

Answer: Dear RK: Really good question, but a bit more complicated than it seems. Here’s my thoughts:           

1. Since you wrote that you have a contract, the first place to look for what you are entitled to is in that contract. A contract is a set of mutually enforceable promises. If your contract says that you have a right to two months of severance, it probably also says something about in what circumstances you are entitled to it. For example, I am sure it does not say “You are entitled to two months severance if you are fired for misconduct.” I am also sure it does not say, “You are entitled to two months severance if you resign voluntarily.” You need to read the words of the contract carefully for what it says about when and under what circumstances you are entitled to your severance.

2. Chances are your contract says, in effect, “If you are terminated without your having committed ‘cause,’ you will get paid two months of severance.” That is the most common statement regarding severance that we find in employment agreements. It also implies that you are not entitled to any severance in other circumstances: (a) being fired for misconduct, (b) voluntarily resigning, (c) dying, or (d) becoming disabled.  

3. If you get a new job, you will have a choice: (a) resign to take that job, or (b) stay and collect severance. Imagine, for the moment, that you are successful tomorrow in getting a new job, and that your future employer would like you to start in two weeks. In that event, you will face a choice of either (a) resigning from your present job, or (b) staying where you are until you are laid off, and then collecting two months’ pay. Unless you (i) are quite wealthy, (ii) plan on retiring now,  or (iii) would rather collect unemployment insurance, you will need to resign from your present job – and chances are you will not, therefore, meet the requirements of getting paid severance.

4. Being told you are going to be terminated is not the same as being terminated; also, resigning under these circumstances is not considered “involuntary,” but purely “voluntary.” These two thoughts are the most common thoughts that my clients have responded with when confronted by what you are confronted with. “Isn’t what happened to me the same as being terminated?” The answer in law, and as a matter of fact, is “No.” Also, “Isn’t my getting  a new job something I had to do after being told I should do that, and I was going to be terminated?” The answer in law, and as a matter of fact, is “No.” Unfortunately, if you are successful, you will probably lose your severance.

In everything you do in life, you should keep in mind that the best results are achieved when you aim toward the “positive outcomes” in life, and do not worry about what benefits you may, as a result, “lose out” on. Severance is intended to help employees during a period of transition; not to be a wonderful windfall. If you don’t have any loss of income in your transition, then it makes sense that you would not get help in that instance.

5. However, if you do get a new job, and it pays less than your present job, I think you should respectfully request the severance - or part of the severance – anyway. In this instance, I do think you are entirely reasonable and justified in asking that, despite what your contract may provide, you be paid the severance, or part of it, as you will – slowly but surely – actually suffer some adverse economic consequence as a result of the transition. In my experience, perhaps one-third of employers would pay you the severance if you made such a request. So long as you make your request in a respectful fashion, you have nothing to lose, and everything to gain.

R.K., I hope this is helpful. Good luck in your job search. Please consider clicking from our blog to our advertisers, and using their services – whether it is Expedia.com, GoDaddy.com or others – as they help us “keep the lights on” for our blog visitors and friends.                                                                                         

Best,
Al Sklover

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

© 2011 Alan L. Sklover, All Rights Reserved.

Question: I was offered a job by phone, and accepted it, pending a background check. The next day I received a phone call from the company’s HR Director in which he told me the offer was rescinded due to several items that appeared on my background check, including convictions for crimes in states I had never been to. I told the HR Director that I had never been arrested in my life, but he said there was nothing he could do; he had to offer the job to someone else.

I immediately did my own background check on myself, using the same company, and did find real problems for a person who had a similar name to my own, but not the same name or birth date. I emailed this new information to the HR Director, but he never responded. When I spoke again to the background check company, it turns out that the HR Director could have seen what I saw, but he apparently  failed to narrow down the registry to the very last step: to my own particular information. Could I sue the background registry company?  

Joshua
Yigo, Guam

                                                                                     
Answer: Dear Joshua, Sorry to be the bearer of bad news, but the person who failed to be careful, at your expense, was not the background checking firm, but the HR Director, and you have no legal claim against him.           

1. So long as your not getting hired was not due to illegal discrimination, you have no claim for not being hired. No one has a right to be hired. There are lots of reasons an employer can decide not to hire a job applicant, some good and some bad. So long as an employer is not violating the law by basing its decision on unlawful discrimination, its reasons for not hiring you do not matter. If an employer is negligent or foolish – as seems happened here – you have no right against it for being that way.

2. If a Background Checking Company was negligent, you could have a claim against it, but it seems it was not negligent. From what you’ve written, it seems a reasonably diligent person could have found out from the Background Checking Company that you were not the same person as the person who was arrested. The Background Checking Company cannot be held liable for the prospective employer’s misuse of its data or its systems.

3. Since you seemed valuable to the HR Director once, perhaps he will consider you when another opening exists. Whatever your skills and attributes are, you seemed to be a valuable person to the HR Director once. That would suggest that your skills and attributes should be valuable to him again. Consider contacting him every once in a while about your interest, your availability, and – especially – your entirely clean Background Check. Keep it positive, and be persistent.

Joshua, thanks for writing in from Guam. I hope your job search will soon be more successful. When it is, I hope you’ll continue to use all of the resources we offer you to “navigate and negotiate” to job security and career success. 

Best,
Al Sklover

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

© 2011 Alan L. Sklover, All Rights Reserved.

“No one cares how much you know, until they know how much you care.”

- Don Swartz

At work, everyone – including customers, colleagues and supervisors – knows whether you care about your work, or whether you couldn’t care less about it – and them. There’s just no hiding the reality that you are engaged in the tasks before you, or whether you’d rather be fishing. Don’t think for a moment they can’t tell the difference, and won’t act on what they know. Just like you do when you choose others to employ – from politicians to plumbers. Caring about your work will not, alone, keep you employed, but caring about your work surely will help.

© 2011 Alan L. Sklover. All Rights Reserved

Question 1: Can a coerced resignation be rescinded? My sister was terminated for absenteeism. (She has lupus, and required time off.) She was shocked and crying . . . they told her it would be better if she resigned . . . without proper consideration (advice) she signed a blank piece of paper. Will this hold up in a Court of law? Can she have the resignation rescinded? 

Raymond
East Aurora, New York

The Very Short Answer is “Yes.” Raymond, a resignation signed (1) on a blank piece of paper, (2) by someone who was “shocked and crying,” (3) who was told to do so, (4) after being told she would otherwise be fired for taking sick time off, would almost surely be rescindable, and not stand up in Court. I would suggest she write to the company – Certified Mail – and mention these four circumstances, and her rescinding of her resignation based upon those four circumstances.

Common sense almost always prevails,
Al Sklover

If your Small Group is interested in a Private Tele-Seminar with Mr. Sklover
Just choose the Topic – perhaps non-competes? – and then Just click here.

Question 2: Can I be put on a Performance Improvement Plan (“PIP”) because I attended a meeting of employees to discuss our bullying boss? My entire department had a meeting about our boss, and his being a bully boss. I attended it, and spoke up. Right after that, my boss put me on a PIP for that, saying I exhibited “unprofessional behavior.”

HR told me the meeting and my PIP the next day had nothing to do with each other. Is that right?

S.S.
Long Island, New York

The Short Answer is “No.” At least from the timing and circumstances you describe, it sure looks like (a) the meeting, and (b) the PIP, are closely related. I suggest that, no matter what HR says, you “push back at your PIP,” and mention that (a) you believe it is motivated by retaliation, and (b) it is not “unprofessional behavior” to attend a meeting about your bully boss. Such retaliation is a violation of both law and company policy.

You may want to obtain our Model Letter to Help You Push Back at Your PIP. To do so, simply [click here].   

I do hope you’ll stand up for yourself,
Al Sklover

Our Most Popular Model Letter Package is entitled
“Ultimate PIP Package. If interested, just click here.

Question 3: If my employer shortened the “notice” of resignation I gave, am I entitled to be paid for the entire notice period? If you submit your resignation with 30 days notice (effective the 31^st), and the employer tells you the end date is the 24^th, is the employer obligated to pay you until the 31^st per your resignation letter?   

Alec
Valencia, California

The Short Answer is “No.” Unfortunately, the answer is no, and the experience you describe is incredibly common.    

Sorry for the disappointing news,
Al Sklover

Don’t Forget: We offer a 100-Point Pre-Resignation Checklist.
If interested, just click here.

Question 4: Is there anything I can do to prevent my employer from taking taxes out of my severance? My job just announced that they are transitioning my employment and have offered a severance package. What can I do so that taxes are not taken out of the severance check at the time . . . I will be filing taxes, but just needing all of the money now.    

Janice
Colorado Springs, Colorado

The Short Answer is “No.” Employers are required to withhold taxes from payments to employees and recently terminated employees, including severance payments. This requirement exists because the government is afraid – probably rightfully so – that employees will spend their money, and not have the money to pay their taxes on April 15^th.  You do have a right, though, to reduce your present withholdings by filing a new Form W-4, and claiming 9 exemptions.

That’s the best you can do,
Al Sklover

To view our free YouTube Video entitled
“The 7 Timeless Truths about HR,” just click here.

Question 5: If I am not certain why I was let go, is it ethical to say I was “laid off?” My employment ended “involuntarily,” but that is all I know. They were silent on their intentions as to if I will be replaced or position eliminated. In the separation agreement there is language that they have the option to hire someone into my position. At the same time, I checked on their website, and it doesn’t show a posting for my position. They told me they wouldn’t challenge my application for unemployment benefits. Is it ethical for me to say on a job application that I was “laid off?” 

Megan
Orange County, California

The Short Answer is “Absolutely.” From everything you have written, that is exactly what it sounds like the reason was. You were never told it was a matter of poor performance. You were never told it was a matter of misconduct. It sounds like nothing other than a layoff.

Good luck in your job search,
Al Sklover

If You Could Use a Private Telephone Consultation with Alan Sklover
to find a better path forward, just click here.

Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. Questions of over 100 words will not be reviewed. And only one question at a time. If you do submit a question, you agree that Alan’s answers are not legal advice, but only suggestions to consider. Please understand that not all questions can be answered, due to limitations on time and space. Still, we “do our best to do our best.”

Note: Brief Questions are given Priority in Answering

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

© 2011 Alan L. Sklover, All Rights Reserved. Commercial Use Prohibited.

Question: Hello, Alan. I bought your template for pushing back at a Performance Improvement Plan (“PIP”), and had a meeting with my manager, department director, and Human Resources. The PIP contains at least one provably false statement, and blames me for failing to fulfill a task that I later found out was my manager’s legal responsibility.

The HR Director would still like to continue with the PIP. I would like to stay at the company but I feel like fighting this further will definitely upset people and burn bridges.

Do you have any suggestions? 

Brad
Houston, Texas

                                                                             
Answer: Dear Brad: Didn’t you know that “Suggestions” is my middle name?          

1. First – and most importantly – your initial “PIP Pushback” probably showed everyone that you know how to push back in an effective manner. Congratulations on taking the first big step. By following the substance and style of our Model Letter on PIP Pushback, you have established yourself as NOT a willing victim, and NOT easily intimidated, humiliated or infuriated. Though you may not have gained any popularity with those who are responsible for the PIP, you have almost surely gained their respect. That is quite significant.

2. Second, as a result of your initial PIP efforts, your chances of surviving the PIP are now significantly higher. It’s just human nature: your manager, department director and HR will now be more careful in handling your PIP. While the chances of “surviving” a PIP are not high at all, your chances of “surviving” your PIP are now significantly higher. Continue to request IN WRITING (a) sensible and reasonable objectives to accomplish, (b) the opportunity, resources and time to accomplish those objectives, and (c) measurable criteria of success in your progress in accomplishing them.

3. You are right to listen to your intuition; in negotiation, it’s your best guide. Negotiation is all about motivating another person to do something they are not now inclined to do. It is a very intuitive process. If you think that pushing against the Performance Improvement Plan further would upset and burn bridges, then by all means don’t do so. So, don’t push further, but remain on alert for any more provably false statements, and the like, in the course of your continuing PIP. Proceed, but don’t lose focus on the process, or forget who you are dealing with.

4. And if HR decides that the PIP was not successfully completed, you will be much better situated to get a fair, if not generous, severance package. A valuable aspect of initially “pushing back” at a Performance Improvement Plan is that, as a consequence of your first “pushing back,” if you are deemed not to have successfully completed the PIP, and are then told your employment will be terminated, (a) you will already have leverage for requesting better severance, and (b) a more receptive audience for that request. In fact, my experience is that employees who do push back almost always get better severance offers.

Brad, once again, my hat goes off to you for standing up and pushing back at a Performance Improvement Plan. Seems you have “gotten their attention” in the way you need to in order to get past a PIP. I truly wish and hope that is exactly what happens. I’d love to hear how things go.

And thanks, too, for purchasing our Model Letter for Pushing Back to a PIP. We help our visitors, and they help us “keep the lights on” in these ways.  

Best,
Al Sklover

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

© 2011 Alan L. Sklover, All Rights Reserved.

Question: I have been in a new job for six months and work remotely. Today my boss asked me if I would please send him a job description for my position. Should I be worried? I’m not sure how to handle this. Thank you.   

                                                                                                                                   Dee
San Diego, California

Answer: Dear Dee: It would seem to me that, unless you know something that you have not shared with me, what your boss has asked of you should not, in itself, be a cause for concern.          

1. Any number of reasons might exist for this request from your boss. So often we seem to automatically “default to fear” at work. Everyone is so concerned about job security – or, more precisely, the absence of job security – that fear arises where there is really no reason for fear. While fear of job loss is understandable, it is not helpful.

Your boss might have been required to assemble job descriptions by his or her boss. Your boss might have decided that it was a good discipline to know what each of his or her employees is supposed to be doing. Your boss might be planning on promoting people, and needs a list of covered duties to do that. Don’t speculate, don’t wonder, don’t fret. There’s no reason for it that we know of, and worrying won’t help, no matter what the reason may be.  

2. The simple answer to the question is “Just do it.” It is that simple. Unless it is immoral, improper or illegal, if your boss asks you to do something, you should attend to it. Just prepare the best, most comprehensive and clearest job description that you possibly can prepare, and deliver it to your boss promptly. Show confidence. Show competence. Show promptness.

3. Thinking positively, which is the only good way to think. You might consider this an opportunity to show your boss how much you do, and how valuable you are to him or her. I strongly suggest you see this as an opportunity to “toot your own horn” and make yourself appear extremely valuable to your boss. That’s what gives people job security: the perception of value to their boss. Show him or her that you help make him or her “shine” to his or her boss.

Your job description should be comprehensive, complete and clear, and should show that you are responsible for – if appropriate – (a) improved revenues FOR YOUR BOSS (both new revenues and cost reduction); (b) improved relations FOR YOUR BOSS (with his or her staff, supervisors, customers and clients); and (c) reputation OF YOUR BOSS (both inside the company and externally, as well.)

4. While it may, in fact, not be “good news” that is the source of the request, acting in this fashion can only make it “better news” than otherwise. You know, Dee, “you have to play the cards that you are dealt.” That said, it always pays to play your cards with positive spirit, with positive expectation, and with positive outlook. That’s what results, short term and long term, in a positive life, at work, and at home.

Thank you for writing in. Please consider telling others of our blog, and how we – hopefully – have given you a positive path forward.                                                               

Best,
Al Sklover

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

© 2011 Alan L. Sklover, All Rights Reserved.

Question: What are the circumstances in which an employee will be able to sue their employer for bullying in the workplace and psychological damage deriving from so called “workplace stress?”  

Allie
Dublin, Ireland

Answer: Dear Allie, Though I am not licensed to practice law in Ireland, I did a bit of research and found that Ireland is really quite progressive when it comes to protecting employees from “Bully Bosses.” It sets up a resolution procedure that attempts to make lawsuits for bullying unnecessary. Here’s what I found out:         

1. Ireland has passed a Code of Practice to Deal with Workplace Bulling. Though it seems there has been a dramatic increase, worldwide, in the incidence of bullying at work, Ireland is one of the few countries I know of that has passed a law to prevent, and deal with, workplace bullying. In fact, Ireland first passed a law aimed at preventing workplace bullying in 2002. In 2007 it passed an improved law to resolve employee complaints. The improved law was drawn up by the Irish Health and Safety Authority (“HSA”), and came into effect on May 1, 2007. Its title is “Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work.”

2. The Irish Code of Practice provides a wide-ranging definition of “bullying.” It is “repeated inappropriate behavior, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work.” I must say that I am very impressed with the broad definition, which seems widely applicable to all sorts of bullying at work.  

3. The Irish Bullying Code requires an internal investigation and a written set of investigation findings. The Irish Bullying Code lays out a formal procedure that gives each of the employee(s), the alleged bully(s) and management certain specified responsibilities to resolve bullying disputes, and even requires preventive training by all who may be involved in such disputes. The forms necessary to set the process in motion are available from the Irish HSA by calling 1-890-289-3809, or by emailing a request to wcu@hsa.ie.

4. After the required process, an employee can also then bring a formal lawsuit. If the complaining employee is not satisfied with the outcome, he or she is then authorized to bring a formal suit against the alleged bully boss or bully colleague for any damages suffered – and can use the findings of the required investigation in his or her formal lawsuit.   

Allie, I hope this is helpful to you, though I have not been able to determine precisely how to bring a lawsuit for “psychological damages from workplace stress.” The informal procedure I have outlined above is intended to provide whatever remedy may be necessary or appropriate for any harm done by a bully boss or bully colleague.

Thank you for writing in. Please “spread the word” about our blog to your friends and colleagues in Dublin!

Best,
Al Sklover

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

© 2011 Alan L. Sklover, All Rights Reserved.