Seven Short Q & A’s on Saturday

Question 1: If my client conversations are recorded, can what I say be held against me? If your job requirement is talking to customers, and those conversations are recorded, can an employer use those conversations against you?    

Name Withheld,
Fitzgerald, Georgia

The Short Answer is “Yes.” Most of us are familiar with calling Customer Service and hearing a recording that says, “This telephone call may be recorded for quality assurance purposes.” The reason your telephone calls are being recorded is to ensure you, as the company’s representative, don’t say anything incorrect, improper or indecent. If you do, you can be held accountable for doing so.     

Remember: Loose lips sink ships,
Al Sklover

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Question 2: Is this a hostile work environment or bullying? A work colleague has been making demeaning jokes about me. He also publicly demeans and criticizes me in front of patients and visitors. If I speak to him, he turns his back and faces away from me when he responds. Last week he became extremely hostile and angry and tore me down in front of everyone. This is not due to sexual harassment or other discrimination based on me being female, etc. Does this sound like hostile work environment, or just bullying?    

Jackie
Seattle, Washington

The Short Answer is “Bullying.” As you seem to know, in the eyes of the law a “hostile work environment” exists only if the hostility is due to a form of illegal discrimination, such as gender, race, age, disability, pregnancy or other illegal discrimination. While this does not seem to be a “hostile work environment,” I would not call it “just” bullying, either, because bullying is a very serious matter. Bullying can seriously affect health, emotional well-being, and job performance. And, too, it can be a big “turnoff” to patients, their visitors and other “potential future customers.” I urge you to report it to senior-most management, in writing, and remind them that it has even been seen by patients and visitors, who may develop a bad perception of your facility, and even tell others that your facility is not a nice place to be in. Though a bully sometimes gets worse if complained about, more often than that a bully will simply find a different target for his or her emotional poison.

If you are concerned about possible retaliation, we offer a Model Letter entitled “Anonymous Complaint About Bully Boss” on our Model Letters Section of our blogsite that can be adapted to use for a “Bully Colleague,” as well. To obtain a copy [click here].

I wish you peace,
Al Sklover

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Question 3 – Can I be fired for refusing to sign an agreement to arbitrate all employment disputes? I have worked for my employer for over 9 years and my employer just told everyone they have to sign an arbitration agreement that says all disputes can’t go to court, but instead must go to arbitration. Can my employer fire me if I do not sign the arbitration agreement?

Mable
Indianapolis, Indiana

The Short Answer is “Yes.” In any relation, including employment, the parties to the relation are free to establish “rules” for their interactions, so long as the “rules” do not violate the law. If one party does not like the “rules,” that party can ask the other party to agree to change the “rules.” If they can’t agree on the new “rules,” either of the parties is free to end the relation. There is nothing illegal about your employer requiring its employees to sign an agreement to arbitrate all disputes, and firing those who refuse to do so. Though it’s not easy finding a new job, that may be your only recourse, unless you agree to submit all disputes to arbitration.

Sorry for the disappointing news,
Al Sklover

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Question 4 – Am I entitled to commissions on a Purchase Order issued before I left the company? If my customer issues a purchase order for a service project valued at $100,000, and I leave the company before the service has been provided, am I entitled to commissions on the sale, and if so, how would it be calculated if no actual invoices have been generated?        

Jim
New York, New York

The Short Answer is “Depends on your employer’s Commissions Plan or Commissions Agreement.” Jim, whether you have earned any commissions depends, first and foremost, on what it says in your employer’s Commissions Plan or Commissions Agreement. Most commission plans provide that a departing employee is not entitled to any commissions unless, during the period of their employment, payment has been received by the employer from the customer. However, some commission plans provide for earning commissions at an earlier date or event, so you would be wise to review yours carefully.

If you don’t have a copy of your employer’s Commissions Plan or Agreement, you should be able to get a copy from Human Resources. If your employer does not have a Commissions Plan or Commissions Agreement, then New York law would consider your commissions “earned” if the customer had agreed to purchase the services upon all of the employer’s terms. I cannot tell from your letter if when your customer “issues a purchase order” that would mean an “agreement on all terms” to purchase those services. For more info on this subject, check out the website of the New York Department of Labor at  www.labor.ny.gov.

I hope this is helpful,
Al Sklover

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Question 5 – Can my former employer put “Must get drug treatment” in a reference? I resigned from my nursing job due to drug abuse. I self-reported to the Nursing Board and am in a Rehab Program. I’m compliant with my Rehab Treatment Agreement, now have a restricted license and am seeking employment. For references, my former employer states they “must” include that I am only eligible for re-hire “if she gets treatment.” They know I’m in treatment and am required to give a copy of my Rehab Treatment Agreement to future employers. I want to be the one who talks to any potential employer about this, and said so to my former employer, to no avail. Can they do that?   

Constance
Baltimore, Maryland

The Short Answer is “Yes.” A former employer is free to put any truthful statement into a reference. It is my expectation that your former employer is being told by its lawyers that, if they fail to alert other potential employers to your need for ongoing treatment, they might be held liable for any harm you might cause to patients on your next job. Though I understand and appreciate your preference to be the first person to speak with any potential employer about this, I don’t think you can stop your former employer from sending out the references they view to be proper. My experience in matters such as yours – as well as the shortage of nurses – leads me to believe that, if you continue in treatment, you will find a job, and be able to restart your productive career once again.   

Your recovery is in my prayers,
Al Sklover

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Question 6 – If laid off, should I get the severance my division provides, or the higher severance given to people at the division I used to work for? I have been employed with an office equipment manufacturer since 2000. In my fifth year I transferred to another business group which offered outsourcing services. Each business operates as its own entity. My present business group is downsizing and I face possible layoff. I have heard the division I am in has a practice of offering 2 weeks of severance and no more, while the original division I was with offered one week of severance for each year, which would give me at least 5 weeks of severance, and maybe even 11. If terminated should I be “grandfathered” and entitled to the higher amount of severance?

Michael
Merrick, New York

The Short Answer is “Depends on the terms of your division’s Severance Plan, but . . . .” Because you have written “Each business operates as its own entity,” it is most probable – but not definite – that each division also has its own Severance Plan. If this is so, you must carefully review your employer’s Severance Plan. It is possible that your employer’s Severance Plan does “grandfather” you as you describe. In addition, if your employer’s Severance Plan does not “grandfather” you, you have every right – and a good argument, too – to ask that you be treated as if “grandfathered,” anyway, since the two divisions are, in fact, part of the same company. A respectful written request to a senior manager or executive, perhaps even one you know well – but never to Human Resources – sent by email, is your best bet.

Good luck, and in your job search, too,
Al Sklover

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Question 7: Facing a disciplinary hearing for using the internet; what’s the best way out? Alan, I am with a company for 10 years. We all use the internet for personal things while on the job. Management was fully aware of this, but never objected. Without warning, I was suddenly suspended for this reason. I now face a disciplinary hearing alleging I engaged in “gross misconduct.” What is the way out?

Bhavin
London, England

The Short Answer is “The truth.” Bhavin, the brief note you have sent seems to suggest your “best way out.” (a) 10 years on the job, so you are apparently quite reliable and trustworthy; (b) No known rule against what you did, so you were not on any official “notice” of its being a serious offense; (c) Everyone does it, adding to the sense that it was not a serious offense, if any offense at all; (d) Management knew of it and did not object, most convincing that it was not considered a serious offense; (e) It did not seem to cause a problem in your work performance; and (f) You seem to want to put this behind you and keep your job.

As is so often the case when misconduct at work is alleged – and true – it is (1) the truth (2) told with honesty and humility (3) by a valued employee, that is the “best way out,” if any way out exists. We all make mistakes, and when our mistakes come to light, facing the truth, and the consequences, is the “best way out.” Incidentally, if you are a member of a union, or have a written contract of employment, your union rules or written employment contract may make such a disciplinary hearing improper under these circumstances. In all events, I hope this works for you.  

Good luck at your hearing,
Al Sklover

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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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