Seven Short Q & A’s on Saturday

Question 1: Is it legal to downgrade my performance review based on unfounded accusations? The incident in question happened a long time ago, and was just mentioned in a recent review. Is it legal or appropriate to include this unfounded accusation?

CF
Overland Park, Kansas

The Very Short Answer is “Yes.” CF, the law does not limit what factors to include in a performance review, even “unfounded” accusations. It surely does not seem fair, it surely does not seem appropriate, and it surely does not seem wise, but it is legal.

Best,
Al Sklover

Question 2: If my new employer misled me about my new job, and I leave the new job for this reason, do I have to repay a loan the new employer made to me when I was hired? Can I negotiate it? I had borrowed some money from my 401k. When I changed jobs, my new employer agreed to make me a loan so that I could repay the amount I borrowed from my 401k. Soon after taking my new job, I became dissatisfied with my new employment because it seemed my new employer misled me about the amount of out-of-town travel the new job entailed. When I resign, do I need to repay the loan then? Is this something I can negotiate with them?

Timothy
Pennsburg, Pennsylvania

The Short Answer is “Probably Yes and Probably Yes.” Whether you have to repay a loan, and when you have to repay it, is probably set forth in some document, usually what we call a “Promissory Note,” that your new employer had you sign before it gave you the loan money. It’s quite probable that it says something like “If you leave employment with us, you must pay the money back immediately.” And you are not excused from your repayment obligation by the fact that you believe you were misled. However, given your belief that you were misled, and that you would not have changed employers except for being misled, you just might have a good chance to negotiate (a) whether you have to repay it, (b) if you can repay only part, and (c) when you might have to make payments. It does not hurt to try, so long as you keep your approach respectful and reasonable.

I hope you will give it a try,
Al Sklover

Question 3: Can an employer say that it will only pay a “retention bonus” if you lose your job after a merger? Our company is being bought by a bigger company. They have offered us a retention bonus to stay until the date of the merger BUT we only get the retention bonus if we don’t get offered a job with the new, merged company. I have never been involved in a company merger before, so I don’t know much about retention bonuses, but I thought (and everything I have read) is that a retention bonus is paid even if you do get offered a job with the new company, so long as you stay and meet all work performance. Am I wrong? Thanks.

Will
Goshen, Kentucky

The Short Answer is “Yes, you are wrong.” Will, there are many different kinds of retention bonuses. Many say, in effect, “If you stay, and do your job, you will get the retention bonus, whether or not you are offered a job with the new, merged company.” I’d say about 2/3 of retention bonuses work that way.

However, in my experience, many retention bonuses say what your company is saying, which is, in effect, “The new management is not sure which employees it wants to keep. Please stay with us, and give the new company a chance to figure out who it wants to keep, and who it does not need. If you are asked to leave, you will get this bonus for having stayed.”

Just in case you are wondering: can I ask to be let go and keep the bonus? Sure, but be careful to (a) do it in writing, and (b) make sure you add “This is not a resignation.”

Hope that clarifies things,
Al Sklover

Question 4: Are there ways to find out if a former employer is bad-mouthing me? Alan, I recently was asked to resign or be terminated, with no write ups and no notice. In my job search I’ve had several interviews but no luck yet. I feel that maybe my former employer is bad-mouthing me. Are there ways I can find out if it is happening, and if so, stop it?

Greg
Johnson City, Tennessee

The Short Answer is “There are three basic ways.” (1) There are “reference-checking” companies who will, for a fee, call or write to your former employer and request a reference. You can find many by entering “reference checking” into Google. (2) You can ask a friend who is in his or her own business, to call or write to your former employer requesting a reference. (3)  You can send a “gentle” letter to your former employer telling him or her that people have suggested that he or she might not be saying things in the company or outside the company that are “not complimentary” to you, and that, if true, you would appreciate it if this might end, so you can find a new job. In my experience one or more of these ways usually works to find out about, and if need be, stop, bad-mouthing by a former employer. 

Hope that helps; keep the faith,
Al Sklover

Question 5: As a supervisor paid on an hourly basis, am I entitled to overtime pay? And can my employer reduce my hours to part-time? I’ve been with my employer for nearly ten years. Today I was told that I had to sign a contract that could reduce my hours, potentially causing me to go from full time to part time work. Additionally, I’m a supervisor, but paid on an hourly rate. For overtime hours I am paid my normal hourly rate, and not an overtime rate. Are these acceptable business practices?

Adam
San Clemente, California

The Short Answer is “Probably no, and probably yes.” As a general matter, unless you are covered by a union contract or a personal employment contract, your “at will” status means that your employer can reduce your work hours – even to part time. Also, California law provides that executive, administrative and professional employees are “exempt,” which means “not eligible for overtime pay. ” As a “supervisor,” you may be exempt from the overtime laws, but I’m not certain. For this, I suggest strongly you visit the website of the California Department of Industrial Relations (“DIR”) at www.dir.ca.gov and type in “overtime” in the search box at the top right hand corner of the home page. You can also call their Worker Hotline at (866) 924-9757 to inquire on whether or not you would be “exempt” from application of the overtime laws. 

Hope this helps,
Al Sklover

Question 6: Is there any certain way I should ask why HR has not gotten back to me regarding a new job offer? Hi, Alan. I had cleared all rounds of interviews with a company and had started negotiating salary with the HR. While interviewing, the panelist had mentioned they wanted to immediately fill the position, but now my offer is on hold. The HR had agreed to get back to me but it’s been two days I haven’t heard from her. Is there any certain way I should communicate to understand the reason for putting the offer on hold, and knowing their final decision?

Neha
Mumbai, India

The Short Answer is “No, but here’s a few ideas . . .” Hi, Neha, thanks for writing in. There could be many, many different reasons your offer has been put on hold. They might include: (a) HR has assembled information on several different candidates, and someone has to make a final decision; (b) the company has decided not to fund the position; (c) an email or letter was sent to you, but was lost or delayed; (d) your salary request was above their budget; (e) the HR representative or a crucial decision-maker is sick, on vacation or had a family emergency; and (f) 1,000 other possible reasons.

I suggest you send a nice letter to the HR representative reminding him or her that you remain quite interested in the position, and it would be helpful to know when you might expect to hear back from them. It would be best sent by email or a courier service to ensure that it gets to the HR representative. I think the chances are great that you will get some sort of response.

If that response is that your candidacy for the position is no longer being considered, it could not hurt to send a respectful letter to the HR representative requesting helpful feedback as to the reasons you are no longer being considered. The odds are that you will not receive a frank answer, but it doesn’t hurt to try.

Good luck in your job quest,
Al Sklover

Question 7: When asking for more severance, should I ask for a specific amount, or just “an enhanced” package? I was laid off because the firm had a reduction in workforce, sometimes called a “RIF.” Due to my age and market conditions, I think I am entitled to additional severance. Should I ask for a specific amount of days, or should I leave it open-ended and just ask for an “enhanced severance?”  

Marie
Los Angeles, California

The Short Answer is “A specific amount of days or weeks.” Marie, you are always more likely to get what you want if you ask for what you want. It’s that simple.

I would add, though, that it is more likely that you will get more severance if you use one or more of the “Six Sources of Leverage in Severance Negotiations.” You can read about them in a newsletter I have written by simply clicking on that title. You can watch our 10-minute YouTube video with the same title by simply [clicking here].

We offer a Model Letter to assist you with Requesting Additional Severance. If you’re interested [click here].

Hope your request is successful,
Al Sklover

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.”  

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