“At-Will” Employment Archives

Job Security Secret: If you hear “At Will,” think “Unless Otherwise Agreed” (“U.O.A.”)

Published on March 26th, 2019 by Alan L. Sklover

Sklover Working Wisdom Secrets of Job Security

Job Security Secret:

If you hear “At Will,” think “Unless Otherwise Agreed” (“U.O.A.”)

 

Whenever an employee talks about having no Job Security, they almost always mention that they are only an “at will” employee.” The discussion should not end there.

Most people know that “at will” employment means that either the employer or the employee may end their work relation at any time. It is a kind of harsh freedom for each party to end the work relation. But each side can also, when it wishes, seek to place a limit on the harshness of the other’s freedom by “agreeing otherwise.”

Here’s the best example: most employers want employees to “agree otherwise” by giving two or four weeks notice before they depart, so the employer might make necessary transition arrangements. This is an agreement to limit “at will” by “agreeing otherwise.”

Well, you can also seek to limit the harshness of being told you are no longer needed by asking your employer – when you may have the leverage – to “agree otherwise.”

As examples, (1) asking for at least four weeks’ notice before your last day on the job, (2) asking for at least two months’ severance if you are asked to leave, and (3) asking that your employer will give you a pro-rata bonus and/or vest you in any unvested cash or stock awards, when you are asked to leave.

Here’s another valuable one: If you are asked to relocate to another state or country, as a condition to the relocation you might ask your employer to “agree otherwise” that, if you are going to be terminated, you will not be terminated until the end of your kids’ school semester, to avoid unexpected disruption in their schooling.

These are all “agreed otherwise” limits on the harshness of “at will” employment. The examples cited above are only a few of many, each a kind of “medicine” that eases the pain of “at will” employment, and represents the functional equivalent of a kind of Job Security. This is what a good employment attorney should do for you, but here’s the real secret: you can do it by yourself!

Don’t be bashful about asking for “agreed otherwise” measures to soften the blow of your employer’s decision to end the relation.

So, if you are confronted with an offer letter or employment contract, don’t be bashful, be proactive. Don’t be reticent to say, in effect, “I understand your concern about employees departing without prior notice. Do you understand my concern about being asked to leave the same way?”

You can also ask for such an “agreed otherwise” limitation on “at will’s” harshness at a time you may feel extra “leverage,” such as when (a) you are being asked to sign an offer letter, (b) you have just closed a big sale, (c) you have achieved a great victory, or (d) your employer is asking you to sign a Retention Agreement in fears you might leave.

So, remember: if you ever hear or see the phrase “At Will” always think “Unless Otherwise Agreed,” what we call “U.O.A.” It will be a great step forward in your sophistication of thinking about “Navigating and Negotiating for Yourself at Work.”™

Need a model memo or letter to transmit a request or complaint? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

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© 2019 Alan L. Sklover. All Rights Reserved and Strictly Enforced.

Compliance, Risk and Ethics Officers – Best Practices to Gain Job Security

Published on November 24th, 2015 by Alan L. Sklover

“When you stretch the truth, watch out for the snapback.”

– Bill Copeland

ACTUAL “CASE HISTORY”: Note – In almost all of our case histories, we alter the names and facts a bit to disguise the true identity of our clients. In this case history, we have not done so, because all of the facts are a matter of public Court record.

In 2008 I represented Joseph Sullivan, a Chief Compliance Officer of New York-based hedge fund Peconic Partners. Sullivan objected to the actions of the principal owner of Peconic Partners, William Harnish, in his timing stock sales that gave Harnish and his family an advantage over Peconic’s investors. The practice is called “front running,” and is considered a breach of fiduciary duty to investors. Sullivan had a written contract of employment, but by its terms was still an “at will” employee.

After Sullivan voiced objection to the seeming “front-running,” he was asked to sign an agreement that, without reason or payment, took away his existing ownership interests in the firm. When I wrote a cordial email to Peconic’s legal counsel asking to discuss the matter, hours later Sullivan was fired.

We initiated Sullivan’s lawsuit in New York Supreme Court, claiming, in essence, that objecting to compliance failures was Sullivan’s very job, and so Peconic’s firing him for doing his job was a breach of his employment contract. No Court in New York had ever made such a ruling on behalf of compliance, risk or ethics officers, but we were determined to change the law. Audacious, yes, but surely needed in this day and age, and especially in New York, considered by many to be the finance capital of the world.

Sure enough, we won: Justice Lowe of the New York Supreme Court ruled in Sullivan’s favor. In doing so, he “went out on a legal limb” of sorts, in that he was brave enough to make “new law” where he saw it as quite logical and necessary to do so. His decision was a big step forward for compliance and risk officers.

Unfortunately, on Harnish’s appeal of the ruling, the New York Court of Appeals, which is New York State’s highest court, overruled Justice Lowe’s decision, effectively leaving New York-based compliance officers in the lurch. The Court’s reasoning, in summary, was that a decision to give new legal protections to compliance officers was not its to make, but rather a decision that had to be made by the state legislature, U.S. Congress, or federal securities regulators.

The Court’s decision was not without strong dissent from some of its more thoughtful Judges. Here is what Chief Judge Lippman of the New York Court of Appeals wrote in his stinging rebuke of the decision reached by the majority on the Court:

“In the wake of the devastation caused by fraudulent financial schemes – such as the Madoff Ponzi operation, infamous for many reasons including the length of time during which it continued undetected – the courts can ill afford to turn a blind eye to the potential for abuses that may be committed by unscrupulous financial services companies in violation of the public trust and the law. In the absence of conscientious efforts by those insiders entrusted to report and prevent such abuses of investors, such behavior can run rampant until a third party outside the company discovers it and takes action. The message that will be taken from the majority’s decision is self evident: if compliance officers (and others similarly situated) wish to keep their jobs, they should keep their heads down and ignore good-faith suspicions or evidence they may have that their employers have engaged in illegal and unethical behavior, even where such violations could cause or have caused staggering losses to their employers’ clients. The majority’s conclusion that an investment advisor like Peconic has every right to fire its compliance officer, simply for doing his job, flies in the face of what we have learned from the Madoff debacle, runs counter to the letter and spirit of this Court’s precedent, and facilitates the perpetration of frauds on the public.”

To put it mildly, we agreed wholeheartedly with Chief Judge Lippman’s sentiments, and we shared his great disappointment, too.

LESSON TO LEARN: There is an undeniable friction between, on the one hand, sales and operations people, whose job it is to increase revenues and profits, and whose performance is judged on numerical metrics, and compliance, risk and ethics officers, on the other hand, whose job it is to make sure that sales and operations are carried out in accordance with legal, regulatory and ethical bounds. It is a natural friction that will never go away.

But there need to be rules to protect compliance, risk and ethics officers, who face pernicious retaliation for simply doing their jobs. Until compliance and risk officers are given job protection by the state and federal legislatures, or federal securities regulators, they will remain in significant job jeopardy for doing their jobs, even in the best of faith. That is bad for them. Worse still is that compliance, risk and ethics officers will feel pressured – directly or indirectly, overt or covert – to ignore breaches of “the rules.”

I simply cannot count the number of times that compliance-oriented clients have reported being criticized for being “too negative,” “too picky,” “trying to run the company,” “getting in the way,’ or “going overboard.” One client received a stern email, in all caps, that read, “CHILL.” (That one terribly chosen word in an email resulted in a negotiated severance settlement of over one million dollars.)

Until this problem is attended to by legislatures and regulators, or perhaps the Courts, compliance, risk and ethics officers are on their own to protect themselves. While compliance, risk and ethics officers may not have sufficient leverage when seeking employment to dictate the terms of their employment relations, nothing stops them from asking for protections against retaliation for doing their jobs in good faith. Imagine, if you would, that all compliance professionals made such requests, employers (most especially in the world of finance) would then be under pressure to grant such protections to all.

Membership organizations and trade groups of compliance officers can lobby, too, for industry standards, regulatory standards and “best practices” standards in the structure of employment agreements for compliance officers. That is already underway; more pressure is still needed.

In representing numerous compliance and risk professionals, I have seen first-hand how doing their job can result in losing their job, and how such damage might have been prevented.

In the meantime, there are things compliance officers can – and should – seek when they are negotiating new employment (or during employment renegotiations) to make themselves more job secure. Remember that “forewarned is forearmed,” and “The Lord helps those who help themselves.”

WHAT YOU CAN DO: It’s readily acknowledged that requesting contractual protections during employment discussions may cast a pall on hiring momentum. At the same time, it’s unquestioned that knowing what to ask for, and asking for it when you have the greatest leverage, can only help. The following are the ten items we suggest all compliance, risk and ethics officers raise in employment discussions.
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“Give 90 days resignation notice or repay bonuses – Is that legal?”

Published on July 29th, 2014 by Alan L Sklover

Question: I’ve been given an agreement to sign in order to get my future bonuses. This is what it says:

“In consideration of the above incentives, Employee agrees to provide 90 days notice if the Employee decides to leave the company. Should the Employee fail to provide 90 days notice, the Employee will have to pay back all quarterly bonuses for the past four calendar quarters.”

My fear is this: What new employer will wait three months for a new employee? Is this standard or legal?

Rachel A.
Philadelphia, Pennsylvania

Answer: Dear Rachel: Here are the simple answers, and some information to consider:

1. It is, indeed, legal for employers to require employees to agree to repayment conditions (such as this one) on bonus, commission or equity compensation. Employers are free to set conditions upon employees’ participation in bonus programs, equity programs, commission programs, and benefit programs.

This is the way the law looks at it: the employee is free to say, “No thanks, I’d rather not be required to give notice; I just won’t take a bonus, or equity, or commissions.” Going further, an employee can also say, and please excuse my vernacular, “Take this job and shove it.”

One limitation does exist, however: it must be prospective, not retroactive. That is, it can only affect monies earned in the future, not that have already been earned.

2. No, it is not “standard” to make employees agree to give back bonuses (or other compensation) if they do not give a lot of resignation notice, but it is becoming more common. Quite unfortunately, employers requiring employees to sign such agreements is getting more and more common every day. It seems to be a part of the worldwide trend toward employers trying harder and harder to control their employees, one of the ways they seek to gain the maximum possible benefit from them at the lowest possible cost.

By the way, in my experience only a handful of employees are successful in getting around such agreements. They are the few who are both (a) perceived as extremely valuable by their employers, AND (b) comfortable with negotiating for themselves, and so are able to say, in one way or another: “I won’t sign that agreement, and I want my bonuses anyway ”

This blogsite is devoted to making you one of those employees. We try in every way we can to help employees stand up to and counter that trend and – by gosh – we think it is working, slowly but surely.

3. (a) Long notice requirements (30, 60 or 90 days), and (b) repayment of monies if they are not complied with, both serve a number of employers’ interests. The reason we are seeing more and more of these very unfair, long pre-resignation requirements is that they work well for employers in a number of ways, all of them unfair, if you ask me:

(i) First, they make it virtually impossible for their employees to change jobs for the exact reason you mention: most other employers are not willing to wait 90 days for a new employee.

(ii) Second, they make it very “financially painful” for their employees to leave, because many do not have the money in their bank accounts to repay a year’s worth of bonuses, commissions, stock or benefits. This is getting a bit like what people used to call “indentured servants.” So, many employees simply “stay put.”

(iii) Third, it gives employers a chance to get employees who are leaving away from important clients, customers and accounts, and insert other employees into those valuable relations, so they do not lose customers or clients.

(iv) Fourth, if and when employees do leave without giving 90 days’ resignation notice, the employers can collect an awful lot of money back from them.

By the way, tired of all this reading? Rather just sit back, relax, watch and listen? Consider 12-minute Sklover-On-Demand Videos. See our Complete List. Just [click here.]

4. If a prospective employer really wants to hire you, you can always ask them to help you with this repayment problem you face. Prospective employers see a lot of these repayment problems, yet they still have a need for new, good, hard-working employees with positive attitudes. If that’s what you are, a prospective employer who sees your potential value might just be willing to (a) lend you the money you need to repay the bonuses you owe, (b) share the cost of repayment with you, or even (c) repay you the full cost of repaying the bonuses. That is, IF YOU ASK.

Many of our clients have asked for such assistance, and many – more than you might think – have been successful in doing so. It can be part of the negotiations of salary, bonus and benefits that comes around if and when both employer and employee both decide they want to “get married” to one another. In fact, it’s one of the most common reasons new employers pay “sign-on bonuses.”

5. And, too, after you leave you can always try to negotiate with your former employer to waive or forgive the repayment obligation. If and when you leave your job, you are free – and I strongly encourage you – to seek waiver or “forgiveness” of the obligation to repay the monies you owe. There are many, many good reasons you might suggest that it would (a) only be fair and (b) be in the employer’s interests to do so.

As for just a few examples – and there are many, MANY more – if you left your job because (i) you were being severely sexually harassed or threatened with workplace violence, (ii) you were being urged to be deceptive or dishonest to customers, or (iii) you were being denied promotions because of your age, race, gender, disability, religion, pregnancy, or other illegal reason, then it surely might be best for your employer not to start a Court fight with you, which it could lose.

If you agreed to repay your former employer (a) tuition reimbursement, (b) relocation expenses, (c) a sign-on bonus, or even (d) a short-term loan, you may be able to have that obligation waived and forgiven. We offer a Model Letter for Repayment Obligation Forgiveness – with 18 Great Reasons, just [click here.] “What to Say, and How to Say It.™”  Delivered by Email – Instantly! 

And, hey, if your former employer refuses to waive and forgive your repayment obligation, you just might send all of its other employees our website address and suggest they read this article!! You even have my permission to do so!!

Rachel, thanks for writing in, and for giving me an opportunity to address this issue. As I say time and time and time again, employees have more options available to them, and more leverage, than they tend to believe. The same holds true in this circumstance, as well. And, too, I hope it gives you a sense that (a) you are not alone in “this,” and (b) you have leverage and ways to “stand up” and “fight back.” That’s what this blog is all about.

My Best to You,
Al Sklover

P.S.: Post-employment, employers might use a Collection Agency to collect sums. To thwart those efforts we offer a Model Letter in response to Collection Agencies. Not guaranteed, but almost always works. Just [click here.] “What to Say, and How to Say It.™” – Delivered by Email – Instantly! 

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

© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“If the employment contract I was promised does not arrive, should I leave?”

Published on October 4th, 2013 by Alan L Sklover

Question: I signed an offer letter for a new job, and on that basis I have begun working. However, I was promised an employment contract, but I have not received it. Do I continue with this job, or do I leave?

Afrah
Dubai, United Arab Emirates

Answer: Dear Afrah: Your question raises several other questions. Fortunately, the answers to those other questions will provide the answer to your question. Let me explain:

1. Have you asked more than once for the employment contract? You must not lose sight of the fact that sometimes things just “fall through the cracks,” get forgotten, or simply get mailed to the wrong address. Have you asked more than once for your contract, and addressed your request – preferably by email – to the right person? Don’t get frustrated or disillusioned without good reason.

2. Does your “offer letter” have all of the terms, provisions and conditions you expected to see in your “employment contract?” A contract is a piece of paper which expresses and evidences what two persons – in the employment relation, the employer and the employee – agreed to do for each other.

For the employer’s benefit, an employment contract sets forth what duties and responsibilities the employee will fulfill, where he or she will do that, and who he or she will report to. For the employee’s benefit, it says how much he or she will be paid, what benefits he or she will be provided and, sometimes, how long the employment relation will last, at a minimum.

If your offer letter sets forth the most important terms, provisions and conditions agreed to, it is just as valid and binding as an employment contract, even if it has a different “name.”      

3. Is your employer honoring the terms that were supposed to be in the promised employment agreement? So far, has your employer done all for you that it promised to do – other than, of course, provide the written contract? That is, are the duties your expected to fulfill the same as your present duties? Are the salary, benefits and “perks” what were promised?

If the answer is “yes,” that is a good sign, and you have an early indication that this might be a positive and long-lasting relation. On the other hand, if the answer is “No,” then the failure to provide you the written contract and the pay and benefits promised are all sure signs that you might not be wise to expect to remain in this employment relation very long.

4. “Length of the Employment Relation,” (or “Term”) represents job security, one thing that most employment contracts offer, is quite valuable. There is one thing that your employer may be trying to avoid giving you by not giving you an employment contract: job security. That is very valuable, and its value to you cannot be denied. If your Offer Letter does provide this, you are on firm footing; if not, it should be kept foremost in your mind as something to try to achieve in your efforts.

Job security comes in many different forms, including among others (a) a defined “Term” of the relation, (b) an automatic renewal of the relation at the conclusion of the “Term,” (c) a commitment not to terminate the relation unless the employee has engaged in bad conduct, and (d) a minimum amount of “notice,” for example, 60 days, before the employer can end the employment relation. All are valuable, although to different degrees.

The absence of a specified “Term” is not always negative: it also means you may leave whenever you want to do so for, perhaps, a better job offer, and even without any notice (or penalty) should that be necessary. You might say that without a definite Term of Employment you and your employer are not “married,” but merely “dating,” a much less “committed” relationship – for both “sides.”  

5. Have you considered taking the initiative to “write your own employment contract?” Whenever I say this so someone, they think I am a little crazy. The look on the person’s face says “I didn’t go to law school!” Well, it does not take a lawyer to write a contract, including an employment contract. As noted above, all the “piece of paper” has to do is to set down the basic terms agreed to, and have some kind of “evidence” that both sides agreed to it. That “evidence” could be a signature, or a video in which both sides say, “I agree,” or even an email in which both sides write to each other, “I agree with this.”

You can do this by yourself without any special knowledge, education or training; you really can. Many people do just that, successfully, without the need and expense of hiring an attorney. I encourage that strongly.

You might benefit from reading a newsletter I wrote and posted on this blog entitled “How to Give Yourself the Job Security and  Benefits of a Contract.” To do so, just [click here.] 

For a nominal fee, we also offer a Model Memo, entitled “Confirming Basic Terms of Job Offer (or How to Give Yourself a Contract.)” To obtain yours, just [click here.] Delivered by Email – Instantly. 

6. Do you have a better employment alternative at the moment? We need to keep things in perspective. Even if you are not being treated the way you were told you would be, and even if you don’t like the job, at least it is a job in the meantime. It is a means of support for you and your loved ones, and a better “platform” than being unemployed upon which to seek a new and better job. Bad feelings that arise when people are mistreated are a problem, but should not be permitted to result in making matters worse, by leaving abruptly, and thus hurting oneself.  

If you and your employer are not “committed” by means of a defined Term of Employment, you are free to seek a new and better job, but of course you should keep this job, if possible, until you locate that better job. 

Afra, thanks for writing in. I hope this has been helpful. Your question – and hopefully my answer – illustrate a few points of “negotiating and navigating at work” that we all need to learn how to do, and teach our children, as well.

If this has been helpful to you, please tell your friends and colleagues in the United Arab Emirates about our blogsite. My very best to you.

My Best,
Al Sklover

P.S.: If you’re going to be looking for a New Job, we offer a 152-Point Master Checklist of Employment Negotiation Items to help you. To obtain a copy, just [click here.] Delivered by Email – Instantly! 

Help Yourself With These and Other
Unique NEW JOB Materials

New Job 3: Confirming Basic Terms of New Job Offer
New Job 5: Model Response to Receiving a New Job Offer
New Job 7: Checklist of New Job Items to Consider Requesting/Negotiating
New Job 13: Six Important Elements to Request Be In Your Expected Job Offer
New Job 15: Model Request for Sign-On Bonus
New Job 16: Two Model Memos to Protect Your Book Of Business ("B.O.B.")
Job Issues 5: Model Response to Request That You Sign a Non-Compete

[ Click Here ] and Go to Section "D"

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© 2013 Alan L. Sklover, All Rights Reserved.

“No non-compete, but my prospective employer has signed a ‘No-Poach’ agreement. What do I do?”

Published on September 10th, 2013 by Alan L Sklover

Question: Business is really slow at my present employer, and my hours have been reduced. I did not sign a non-compete. A company that is a customer of my present employer would like to hire me, and I’d love to work for them, mostly because they are very busy right now.  

Problem is that the customer-company has signed an agreement – they call it a “No Poach” agreement – that says that they won’t hire an employee of my employer for four months after the employee leaves the company for any reason.   

This is hurting my family livelihood. Please let me know if anything can be done, and if so, what that is. Is there any way around this?

Crystal
Atlanta, Georgia

Answer: Dear Crystal: Lately I am more frequently working with clients who are having difficulty with prospective employers having signed just what your prospective employer did: “No Poach” agreements. Your inquiry, though, is the first question any blog visitor has submitted for me on this subject. As you will see, the answer to your difficulty is not all that different from the answers I provide employees who have signed non-compete agreements, and want to get “around, over or out” of them. Here we go:      

1. “No-Poach” agreements are  increasingly common; they are essentially “no-hire’s” between two employers, and are as valid and binding as any other agreements. Nearly everyone is familiar with non-compete (often called “non-competition”) agreements, which employers use in an attempt to prevent employees from leaving and what they consider “stealing” their business secrets or business relations with customers, suppliers and other affiliates, and bringing them to their next employers. These efforts grow out of a view – mistaken in my own opinion – that employers have any real business “secrets” or “own” their relations with their customers, vendors, suppliers and affiliates. That is why so many Judges decline to enforce non-compete agreements, unless the employee has done some truly bad deed(s) either in planning or in making their departure. 

Regarding “No Poach” agreements, in a similar way, employers also don’t want their customers, vendors, suppliers and affiliates to “steal” their employees from them, either. So, with increasing frequency, employers are saying to their customers, suppliers and affiliates, “Please sign this agreement that says you won’t “poach” our employees.” This happens most frequently when the employer is in the business of providing to its customers the valuable business services of its employees, such as (a) computer programmers, (b) systems analysts, (c) researchers, (d) consultants, and the like, and know that it is tempting for some customers to think to themselves, “It sure would be cheaper to just hire the person directly, and “cut out” the middle-man costs of his or her present employer.”

2. Like non-compete agreements, “No Poach” agreements are not usually enforced by going to Court, but rather by the possible “Poacher’s” fear of litigation, and the attendant risks of litigation. As I often say about non-compete agreements, the most important thing to know about them is that perhaps 95% of the time they are not enforced in Court, but rather by the fear of going to Court. This distinction is a really important one, for it helps us better focus on how they are best handled, resolved, or defeated.  

You see, no one really wants to go to Court, due to the potential (a) disruption to daily business life, (b) cost of lawyers, (c) exposure of things that people really don’t want exposed, and (d) even a “runaway” jury verdict of hundreds of thousands, or even millions, of dollars. Remember: even Mafia chieftains usually take plea bargains, because they have the same exact fears. 

3. Your first step forward should be to see if the prospective employer would really like to hire you, and to work with you to do that by seeking to get the “No Poach” agreement waived. Nothing makes any real sense unless your prospective employer wants to hire you, and is prepared to confront the impediment to your hiring; the “No Poach” agreement. As I’m sure you are aware, most people shy away from anything that seems like confrontation. 

Determining whether that is the case is the first step to take. I suggest you request a short face-to-face meeting to determine what their answer is, and to explore their thoughts as to what the best avenue to take might be.   

If the answer is positive, then you might mention to the prospective employer that where you now work business is quite slow and even that your hours have been cut way back. That suggests to me, and it may well suggest to them, that your present employer might (a) be worried that that they could lose your prospective employer as a customer (or supplier, vendor or affiliate) if they don’t agree, (b) have no stomach for a Court fight and its expense, and (c) actually be fine with “letting you go,” to avoid the costs of (i) severance, (ii) unemployment, (iii) other sums it might owe you, and, too, (iv) any potential legal claim you might have that your reduction in hours or layoff were improperly motivated. 

You see, just as “the best way to fight fire is with fire,” the best way to fight fear is with fear. 

4. The second step: seek a negotiated waiver of the “No Poach” agreement, noting the reasons above and other “perceptions of risk” to your present employer. With these thoughts in mind, either you or your prospective employer might approach your employer to see if it might, for these reasons or for others, agree to waive the “No Poach” agreement. Bear in mind, as your hours are already being cut back, the value in keeping you as an employee might just be diminished in your employer’s mind, and the “risk” of losing you might be less important to it than if business was quite busy. 

Something else to consider: if you are not a source of revenue to your present employer – that is, not someone whose services they sell to customers – and are more administrative in nature, your gaining the waiver you seek will likely be easier.

In my experience, this second step forward is usually best taken by the prospective employer, the party who signed the No Poach agreement with your present employer. That said, if they don’t want to proceed for any reason, there is no reason you cannot “carry the negotiation ball” yourself.   

5. A potential third step you might take is to request your present employer consider agreeing to a “buy-out” of the “No Poach” agreement. If a business is having financial difficulties, as your employer seems to be experiencing, they may be amenable to a cash payment “up front” to waive the “No Poach” agreement. Typically, the payment of the equivalent of a few months pay to a former employer is sufficient to convince them that this is a good deal. I have seen “No Poach” agreements bought out for anything ranging from one month’s pay to one year’s pay. However, if you are a source of revenue to your present employer, as noted above, then their calculation of lost profits that you represent to your present employer would likely be the key to the negotiation: for example, something like six month’s of  “lost profits,” payable up front, might be the way to negotiate. 

Who should pay that sum? Well, your first suggestion to your prospective employer should be your prospective employer pay that sum, because (i) they are the ones bound by the “No Poach” agreement, (ii) they are the ones who will benefit most by your services, and (iii) they are the ones who surely have more money in their pockets and can afford such a sum. 

If your prospective employer doesn’t buy into that, you might suggest that you will contribute, perhaps, one half of the necessary sum, over time, out of your future pay. Another common resolution is for the prospective employer to agree to pay the sum, and for the employee to agree to contribute a portion over time, but for the employee’s portion to be forgiven if he or she remains employed by the prospective employee for a set period of time, usually one full year.

6. One important caveat: Do not threaten to do any type of harm to your present employer’s relation with the prospective employer, divulge or use secrets, or to damage any other aspects of its business or reputation. In discussions and negotiations such as these, sometimes tempers flare, “hot words” are used, and people say things they should not. You must be very careful not to threaten the interests, reputation or relations of your present employer unless you get the waiver you seek. That could be viewed either as (a) a breach of your duty of loyalty to your present employer, for which you could be sued, or (b) even extortion, which is a threat of harm unless something of value is surrendered, and that could even get you arrested. Though these events are very, very rare, carefully avoiding threats of any kind is the way to make sure they don’t take place.

7. A second important caveat: get both the waiver, and any agreement with  your prospective employer, in writing, before resigning  your present position. Being mindful and careful in all you do is a good habit, especially when your employment, your career and any payment of money is concerned. No agreement needs to be complicated; in fact, all agreements should be kept quite simple. But any waiver, and any agreement as to contribution to any buy-out, should be in writing, so that (a) all are clear as to what has been agreed to, (b) there is a clear record for future reference, and (c) all parties are discouraged from violating those agreements, knowing a clear record exists. No one – not you, least of all – wants or needs to needlessly get involved in a dispute.     

I hope this has been helpful. In my experience getting a (a) waiver or (b) buyout of a “No Poach” agreement is not as difficult as you might think, especially with a business that is having enough difficulty that it is cutting back employee’s hours.

Good luck, and thanks for writing in. Please tell your family, friends and colleagues that we are here to help them, too.

My Best,
Al Sklover

P.S.: Don’t forget: we offer Model Letters, Memos, Checklists and Form Agreements for almost every workplace issue, concern and problem that show you “What to Say, How to Say It.™” Want to see our Entire List? Just [click here.] Delivered by Email – Instantly! 

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

© 2013 Alan L. Sklover, All Rights Reserved.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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