“Can I be on ‘Garden Leave’ and reemployed elsewhere at the same time?”

Question: I have resigned my job in Germany and I have been sent home to sit out my resignation period. I have 4 of the 6 months to go.

My new employers in the UK want me to start ASAP. That would mean double salary for at least 3 months. Are there any problems if I go ahead?


Answer: Dear John: I have very limited facts upon which to respond, but on the basis of what you’ve written, these are my thoughts:

1. What you describe – a long “resignation period” with pay – is usually called a “Garden Leave” provision. Since the dawn of humankind, employers have been upset whenever they have lost valuable employees, especially if those valuable employees leave to work for their competitors. To keep that from happening, employers have come up with many different ways to stop, discourage, or punish employees who consider doing that, and if they do that, to minimize the damage it might cause to their businesses.

A rather recent idea devised by employers is “Garden Leave,” which is a requirement that, if you leave your job, you must give the employer at least 6 months notice before you leave. During that time you typically are told to stay at home – and to “tend your Garden” – to do no work, but to just be available to answer questions. This requirement is usually in a written agreement you are required to sign, or must sign in order to receive benefits, including bonuses and stock options.

2. Garden Leave serves the needs of the employer: (a) to discourage prospective new employment, (b) to disrupt an employee’s relations with clients, and (c) to make any “secrets” known to the departing employer stale and valueless to others. So, by operation of a Garden Leave provision, the employee must sit home, collect pay and benefits, and the employer’s needs, mentioned above, are met. If an employee violates his or her Garden Leave agreement, that employee must bear the possible risks involved: a lawsuit, a letter being sent to the new employer demanding the employee be fired, loss of past-paid bonuses and stock options, and perhaps even having to pay the former employer’s legal costs.

3. It would not make sense for an employer to (a) give the employee continued salary and benefits, but (b) not have its own “needs” – mentioned above – fulfilled. While it is possible your employer would permit you to (a) have the “benefits” of a Garden Leave provision, including salary and benefits, but (b) not require you, in return, bear its “burdens,” I’ve never heard of an employer acting in this way against its own interests.

Additionally, if you were being paid simultaneously by both your former employer and your new employer – presumably a competitor – which one would you give your loyalty to? That would put you in something of a potential conflict of interest. Remember that “A person who wears one watch always knows what time it is; a person who wears two watches is never certain.”

4. If you are, indeed, in this Garden Leave dilemma, you have six possible steps to move forward. First, you could attempt to “work” for both employers simultaneously, which I do not at all recommend, for it is possibly characterized as dishonest to both. Second, you could ask your present employer if they would release you prematurely from your Garden Leave requirements, something that they might agree to, even if just to save themselves the cost of your continued salary and benefits. Third, you could assess the risks of “breaking” your Garden Leave “promise,” which might include, among others, (i) loss of unvested stock and stock options, (ii) repayment of bonuses previously paid to you, (iii) possible legal fees of your employer for taking you to court, and (iv) being fired by your new employer. Fourth, you could ask your new employer to pay the costs of defending you in a lawsuit and paying you for any other losses, which they might do if they view you to be sufficiently valuable to them. Fifth, you could tell your new employer that it will, indeed have to wait, until your Garden Leave has expired. Sixth, if they do not agree to do that in writing, your next step forward would be to seek an alternative new employer who is willing to wait until the Garden Leave expires.

5. Complicated?: Yes. Insurmountable?: No. Don’t be overwhelmed by what lies in front of you. Instead, consider it a “challenge” to overcome by careful navigation and negotiation. This is precisely the kind of situation that every employee needs to get comfortable with in their employment, and adroit in handling. It is my expectation that, with these thoughts in mind, you can do so quite well in “navigating around, on your own, or, if you need, the assistance of local legal counsel.

John, whatever your field of work may be, you will likely be faced with these kinds of challenges again. We hope we have been of assistance in this challenge, and you’ll return to our blogsite again if and when you are faced with other workplace challenges you may face in the future. And, if this has been valuable to you, we hope you will tell your friends, family and colleagues about our blogsite.

Thanks for writing in from Germany. Good luck in your “navigating” forward.

My Very Best,
Al Sklover 

P.S.: If you would like interactive and insightful assistance with your Garden Leave issues, and how to best deal with them, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. If you would like a consultation, just [click here.] [newjob]

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© 2012 Alan L. Sklover, All Rights Reserved.

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