Seven Short Q & A’s on Saturday

Question 1: In South Africa, must I give two weeks notice after two years employment? I have been on contract with this company for two years two months. Upon the last renewal, we did not agree on the salary, so I did not sign it. I resigned. Must I give two weeks notice?  

Magdalena
Johannesburg, South Africa

The Short Answer is “I believe you must give four weeks.” Magdalena, though I am not licensed to practice law in South Africa, my research shows that the South Africa Basic Conditions of Employment Act (or “BCEA”), say that, unless a valid contract says differently, if an employee has been employed more than one year, the employer and the employee must both give the other four weeks notice of terminating the employment relation. Since your contract does not seem valid any longer, since it expired and was not renewed, the BCEA four-week provision seems to be applicable to your resignation.  

It seems like a good law to me,
Al Sklover

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Question 2: Sounds like I have a good case of retaliatory firing? I filed an informal complaint against my supervisor for workplace bullying and “mobbing.” After that he made snide remarks to me, that I recorded. A week later, my position was listed on a local job-search website for immediate hire. I have emails from corporate and my supervisor commending me for excellence in my work. If I’m fired, do I have a good case for retaliation?    

Patriece
Atlanta, Georgia

The Short Answer is “Yes.” The three requirements for a basic case of retaliatory firing are (1) engaging in a “protected activity” (your complaint about bullying), (2) a “negative employment action” (your firing, if you are fired) and (3) a “causal” connection between number (1) and number (2) (suggested by the timing and your positive performance). While it could be defeated by the employer showing you did something else bad, it is a good basic case, what we lawyers call a “prima facie” case. If you want to keep your job, and not have to sue, you might be wise to ask HR, in an email, why your job seems posted, and if it is your job, that you believe it would be a retaliatory firing.

If you’d like to obtain a Model Letter objecting to retaliation on the job, you can do so if you [click here].

If you’d like to consult with an experienced employment attorney in Atlanta, you can obtain a list if you [click here]. 

Don’t be afraid to be proactive,
Al Sklover

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Question 3: Does a company have to have a full time HR Manager? Is it legal in the state of California for a company of over 200 employees to not have a designated HR person? The Business Manager I report to is also the HR Manager. My problem is I have no one to report to about my Business Manager’s unacceptable conduct because she happens to be the HR Manager, too. What is your advice and thank you for your time.

Y.H.
Orange County, California

The Short Answer is “No, I don’t think so.” Though I am not licensed to practice law in California, my review of California law does not find any such requirement. However, your letter does indicate that one person has been “designated” the HR Manager: your boss. I think you mean “Does a company have to have a full-time HR Manager?” I am even more confident that there is no requirement for that. In situations like yours – where the HR Manager is the victimizer – most companies suggest you report the misconduct to the HR Manager’s boss, usually the President or CEO.

If you’d like to obtain a Model Letter to be used to report harassment or hostility against you, you can do so if you [click here].

Hope this helps,
Al Sklover

Y.H., your Q & A was sponsored by:
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Question 4: Do you recommend our local union use an attorney to help stop implementation of a “PIP” program? Hi, Alan. Our local union is trying to prevent a PIP (Performance Improvement Plan) program. Do you have any advice for us and our local union. We are concerned that a number of long-term members could be terminated by imposing on us unrealistic goals. Should we get a lawyer to help us? Thanks.  

Mike
Larsen, Wisconsin

The Short Answer is “Yes.” Though I always try to help people help themselves, without the use of an attorney, in your situation I strongly suggest that the local union consider hiring an employment or labor attorney to assist in the process of either (a) opposing implementation of the program, or, at the least, (b) making sure it is fair and has “safeguards.”

By “safeguards,” I mean that the program always require (i) identifiable and specific goals, (ii) measurable metrics of success, (iii) objective people (perhaps three) to measure improvement, (iv) reasonable timetables, (v) written feedback, (vi) steps and measures to retrain or further train the employee, and (vii) a supervisor or manager of the process who will be held personally accountable for a failure of the employee to improve his or her performance. Such safeguards are rarely, if ever, seen in Performance Improvement Plan (“PIP”) programs, and so you’ll probably need an attorney to help you fight for such measures.  

If you’d like a list of experienced employment attorneys in Milwaukee, you can obtain a list if you [click here].

Good luck. And I’d love to hear how things go.  

Keep standing up and standing tall,
Al Sklover

Mike, I want you to know your Q & A was sponsored by:
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Question 5: What if an employer doesn’t attend an unemployment appeal hearing? I recently had an unemployment appeals hearing over the telephone. I was present for the hearing but my former employer wasn’t. How could this affect the decision?   

Datrick
(City, State Not Specified)

The Short Answers are “Not much.” Your letter did not disclose what state you live in, but in most states, at the initial unemployment hearing the parties each present facts, mostly by testimony. At an unemployment appeals hearing, if one of the parties does not show up, it only means that that “side” has nothing more to add, and the other party, who has appeared, has an opportunity to present new facts, events or circumstances into “the record.” Then, the appeals judge or panel makes a decision based on all the facts given to them, “old” and “new.”

Hope the decision is a good one,
Al Sklover

Datrick, please bear in mind that your Q & A was sponsored by:
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Question 6: Might this be leverage for getting better severance?  Two managers out of ten were let go due to restructuring of territories. The two let go were the only minorities in the 10-person group. Neither was ranked performance-wise at the bottom of the group. In fact one of the two managers let go – an African American Male – was ranked the second highest in the group. Discrimination? Two additional account reps were fired, and they were also minorities. Do we have leverage to increase our severance?

Reggie
Chandler, Arizona

The Short Answer is “Yes, probably.” Severance is paid to employees for one reason: to ensure that “risks” to the company are reduced or eliminated. If the underlying facts, events and circumstances of the decision that was made regarding “Who goes – Who stays?” suggest that the people let go may have been let go for an illegal reason, there’s more risk to the employer, and that is what leverage in severance is all about.

The reason I say “probably” is that it is possible, if I knew more facts, other valid, legal reasons might exist to let the minority managers go. For examples: (a) the two managers let go might have been the highest paid, and eliminating the highest paid employees in a group is a valid business reason to choose someone to be let go – without regard to their race; (b) as another example, the two managers let go might not own their own cars, and the restructured territories might require that each manager have his or her own car. That, too, would be a valid business reason to choose an employee for layoff. This is why knowing all the facts helps.

However you should understand that the circumstances you’ve provided suggests you have additional leverage to negotiate your severance.

If you’d like to obtain a Model Letter to assist you in making a request for additional severance, simply [click here].

If you’d like to obtain our Master 94-Point Checklist for Negotiating Severance, simply [click here].

Good luck in your negotiating,
Al Sklover

Reggie, your Q & A was sponsored by:
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Question 7: If I can’t afford an attorney, how can I get help with discrimination at work? I was terminated for not being “Christian enough” for my employer. Additionally, I was abused and harassed. What do I do? I can’t afford an attorney.

Laurie W.
Weirton, West Virginia

The Short Answer is “You’ve got two choices.” Employees in West Virginia have two places to go for free assistance with employment discrimination based on religion.

First, the West Virginia Human Rights Commission is the state agency that enforces state anti-discrimination laws. They can be reached at (304) 558-2616. Their website is www.wvf.state.wv.us/wvhrc.

Second, the federal Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces anti-discrimination laws. You can call them at (800) 669-4000, or review their website at www.eeoc.gov. Using the website you’ll be able to find your local EEOC field office closest to you. 

Don’t be afraid to stand up,
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. 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.