Miscellaneous Newsletters and Q & A’s Archives

Workplace Negotiating Insight No. 15: “Standard Language” . . . There’s no such thing.

Published on April 10th, 2018 by Alan L. Sklover


It happens to me nearly every day; in fact, it happened to me just last week. When discussing language in a legal document with an employer’s HR or Legal representative, I am told “That is standard language. So, we can’t change it.”

I know why they say that: they are fearful. You see, “long, long ago, in a land far, far away,” some attorney prepared that “standard language,” and this person I am dealing with today is fearful that, if he or she makes a decision to change it today, it could be a mistake. So, it’s easier to use the excuse of “standard language” than to use their brain to address the opportunity, problem and people counting on us to do so.

To get past that, I remind this person of three points: first, this problem is not “standard,” but arose from “substandard” events, so its solution cannot be “standard.” Second, this opportunity is not standard, so the language we need to use is not going to be “standard.” And, third, these people are unique and special, so our efforts on their behalf require unique and special language.

What am I really saying? In essence, “The people you and I represent want this problem to be solved, or this special opportunity achieved. We should try “special” hard to make sure that gets done. They deserve an extra ounce of thought and an extra pound of courage from us . . . otherwise they will not be happy with the outcome . . . or us.”

If you are ever uncomfortable with the “standard language” put in front of you to sign, and are told “It is standard, so we can’t change it,” think of these “non-standard” arguments to overcome such nonsense.

Sure, you should say it “softly,” and sure, you should say it “simply,” and, too, you should say it with “sincerity.” Get past the “standard” argument, and get to the “special” one -the one that works- you and your employer want.

You are not standard, and your employer is neither. Instead you and your employer are worthy of the effort and fortitude that this problem, solution, opportunity and situation need. It’s like buying shoes . . . they’ve got to fit your feet.

This usually works for me, I am confident it will likely work for you, as well.

Observe and Learn.
Then Negotiate.

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Promise Received at Work? Ask These Two Critical Questions

Published on February 13th, 2018 by Alan L. Sklover

“People with good intentions make promises.
People with good character keep them.”

– Author Unknown

ACTUAL CASE HISTORY: Brianna, an Executive Assistant to the Regional Vice President of a major clothing chain, was soon to complete her fifth year of service, all with positive attendance record, positive performance reviews, and positive relations throughout the company. Without her seeking it, one of the company’s vendors made her a job offer with greater compensation and a clear career path to executive level responsibilities.

When Brianna gave her Manager notice of resignation, he pleaded with her to stay, and promised her, in turn, that he would ensure she soon received a very significant ?“retention bonus” totaling almost one half of her full-year salary. With that promise in hand, she politely declined the job offer that had been made to her.

Brianna waited one month, two months, then six months, and the promised retention bonus did not arrive. Finally, she summoned the courage to ask her Manager about it. He said he would look into the matter for her.

About a week later, he told her he had good news, namely, that he confirmed with the company’s Controller that the retention bonus had been officially approved. When it still had not been paid to her after another month, she then received a memo from the Controller’s office apologizing for taking so long to get back to her. The Controller’s memo, though, contained some considerably disappointing news.

First, the retention bonus would be paid, but not for another year “as had been explained to you,” but had not, in fact, ever been discussed. Staying for another year was not something her Manager had ever mentioned.

Second, her retention bonus would be paid to Brianna “if and only if” (1) her next performance review was “exceeds expectations,” (2) the region she worked for met its sales goal for that year, and (3) she assumed additional responsibilities, including extensive travel, that had never been part of her job.

Oh, and one more thing: Brianna’s retention bonus was also conditioned on her agreement to relocate to another city if the company moved her division headquarters during the next year, something that recently had been rumored.
Brianna did not feel at all that she had been treated fairly, not in the least. She decided to seek a position with another employer, as soon as possible, with no looking back this time.

LESSON TO LEARN: What Brianna learned – the hard way – is that, at work, if a promise, assurance or pledge is made to you – whether of a raise, bonus, promotion, stock options or anything else of value – you should instantly ask two critical questions: “When?” and “What are the If’s?” meaning the conditions for receipt.

Nailing down the answers to these two simple questions will greatly increase your chances of receiving what was promised to you, perhaps more than anything else you can ask, say or do.

WHAT YOU CAN DO: At work, If you are offered, promised, assured, pledged or guaranteed anything of value, ask both (1) “When?” and (2) “What, if any, conditions exist on my receiving it?

Ideally, you will develop the habit of asking these two questions, because if you don’t ask them, you just cannot expect anyone else at work to ask, or answer, for you.
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“Are employers required to reimburse internet expenses for home-based employees?”

Published on June 8th, 2016 by Alan L. Sklover

Question: Dear Alan: I do all my work from home. This requires that a great part of my communications with my customers, my coworkers and my employer have to be over the internet.

Do I have a right to be reimbursed by my employer for my monthly internet expenses?

Ipswich, Massachusetts

Answer: Dear Liselle: Your question is very common, as more and more people engage in home-based work, often called “telecommuting,” and use a variety of technologies to do so. People who use their cell phones for work are in the same “boat” as you are. Here’s my answer:
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Non-Solicitation Does NOT Mean Non-Communication

Published on May 25th, 2016 by Alan L. Sklover

Keep in Touch with Clients During Non-Solicit Periods

“ Make new friends but keep the old.
One is silver and the other gold.”

– Traditional Girl Scout Song

ACTUAL CASE HISTORIES: In recent years, there has been an undeniable increase in the number of employees, worldwide, who are required to sign “non-competition” agreements by their employers. Recently, though, “non-compete’s” are facing greater scrutiny and skepticism than ever before among many Judges, as non-compete agreements frequently entail keeping a working person – and probably a person supporting a family – out of work without a really good reason. Thus, employers and their lawyers are finding the enforceability of non-compete agreements less and less certain as time goes on.

As a result, with the same goal in mind – not losing clients and customers when an employee leaves – many employers are changing tactics. The increasingly popular tactic is to use “non-solicitation” agreements, instead, which permit employees to work for any employer of their choice, but requires them to refrain from “soliciting” business from the former employer’s customers and clients for a period of time, commonly from three months to 24 months. These are finding a more hospitable response from Judges when they are asked to rule on their enforceability.

Judges are far more likely to enforce non-solicitation agreements because they do not mandate the employee’s inability to work in their field of endeavor, but merely avoiding going after the business of the employer’s clients.

Like any other restrictive agreement, employees must abide by the terms of their non-solicitation agreements. That said, we have found, that many of our clients have not only avoided “soliciting” business from their former employers’ clients, but have also avoided any contact or communications with them whatsoever, which is entirely unnecessary and often quite self-defeating.

Out of a gut-level – and irrational – fear, many employees completely shut down their communications with their former customers and clients, without good reason, and by doing so decrease the chances that, after the non-solicitation period has expired, they can promptly resume the business relation previously enjoyed, as well as the fruits of it.

Don’t unnecessarily limit yourself. Maintain your valuable and hard-won client relations while under the restrictions of a non-solicitation; just don’t solicit. It’s that simple.

LESSON TO LEARN: Here is the text of a commonly worded non-solicitation agreement:

    “Employee agrees that during his or her employment by the Company and for a period of one (1) year after Employee has ceased to be employed by the Company for any reason, Employee shall not, without the prior written consent of the Company, directly or directly solicit, divert or take away, or attempt to divert or take away, the business or patronage of, the Company’s clients, customers, or accounts, or active or prospective clients, customers, or accounts.”

While it may sound confusing, it is easier analyzed if you simply “parse” it – which means cut it up into “bite-sized pieces.” As an experienced employment lawyer, all I see is (1) one year, (2) will not in any way, (3) try to solicit or take away, (4) business, from (5) the company’s clients and prospective clients. Does it say “Stop all communications with customers and prospective customers? No, nothing like that . . . so long as the communications do not “seek to solicit or divert business.”

That distinction is an important one, because the business and personal relations you may have established in dealing with customers and clients are a good part of your value in your field. Those relations do not have to be “ended cold,” but can be “kept warm” until the non-solicitation period of time is over.

Having signed a non-solicitation agreement does NOT mean that you cannot communicate with your employer’s clients. Nor does it mean cannot maintain your personal relations with your former employer’s clients. And, too, it does not mean you cannot plan to solicit their business. It just means that you cannot directly or indirectly “solicit” them or their business.

Far too many people who are under non-solicitation restrictions unnecessarily limit their activities and communications, and in doing so unnecessarily limit their career success, after signing a non-solicitation agreement

If the non-solicitation agreement you signed is worded like the one above, written only with “solicitation” in mind, then you are free to do everything else. So long as you do it very carefully, it may be very much in your interests when later – after the non-solicitation period has expired –
soliciting their business.

Life is hard enough. Don’t defeat yourself. Do keep in touch with the clients of your former employer. By continually keeping in touch you only increase your chances of them becoming your clients when “the coast is clear.”

WHAT YOU CAN DO: If you have signed a non-solicitation agreement, bear these thoughts in mind, and don’t shortchange yourself:
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You Must Protect Your “B.O.B.” (Book Of Business, That Is)

Published on May 5th, 2015 by Alan L. Sklover

“Do not protect yourself by fences,
but rather by friends.”

– Czech Proverb

ACTUAL “CASE HISTORY: Valerie was the kind of person who made friends – and customers – easily. She smiled a lot, conveyed honesty, had a caring nature, was attentive to people’s needs, and followed up on every possible lead that came her way. Working from home as an independent insurance representative selling long-term care policies of several insurers, she did quite well. Her book of business – what some people call a “B.O.B.” – had grown steadily over the years.

Through mutual acquaintances, Valerie got to know the three owners of a local insurance agency. Eventually, she was asked if she would like to join their firm. The basic deal offered to her was this: “Join our team, and after two years of working together, if things go well, you will become one of four owners, without any investment on your part.” Valerie saw this as a way to move up in her industry, have back-office staff to assist her, and eventually be able to take a bit more time for herself and her family.

After papers were signed, Valerie became the firm’s “specialist” in long-term care policies. As she envisioned, the agency’s office staff supported her client relations and a younger sales representative was appointed her assistant. And, too, Valerie did take more time off to be with her family, because support staff and her sales representative assistant became known to, and trusted by, her customers.

After the first year, though, Valerie noticed she was not being invited to partner meetings, as she had been during the first year. And, too, she noticed that when she asked for sales reports, they were often not complete and never given to her promptly, as they had been during the first year. What troubled her the most, though, was that her sale representative assistant was starting to counsel her clients, and close deals with her clients, without involving her. Sometimes without even telling her.

Soon after Valerie objected, a partnership meeting was scheduled, and she was told that these were now “company clients,” and not her clients. She was told that they were now “company accounts,” not her accounts. And that these were now “company relationships,” not her relationships. She shared her view that “This was definitely not the deal.” Soon thereafter, though, she was given formal notice to leave the firm, and that she would receive a severance of three months’ of partner draws, which is what the papers provided for. That was just fine with Valerie, because if they were not going to honor the deal she believed they made – during many discussions – then she would rather be back on her own again.

But three big problems arose: (1) She was sent a formal letter reminding her that the papers she had signed had included a one-year non-compete provision that was to be effective if she was ever to leave the firm. Valerie thought her lawyer would take care of that. (2) Valerie no longer had any of her clients’ insurance files, as they had become entirely integrated into the firm’s computer network, and she had no hard copies. (3) Worst of all, many of her clients now seemed quite happy to remain clients of the firm because they had grown so close with Valerie’s Sales Representative Assistant and the firm’s support staff.

Simply put, Valerie had somehow managed to lose her “Book of Business,” her “stock in trade” developed and cultivated over many years, and had to start over again – from “scratch.”

LESSON TO LEARN: There will always be some people out there who will steal from you if you let them, and in business “stealing” clients has been going on for thousands of years. If your job is “customer-facing,” that is, related to sales, service, or business development, sooner or later you will come to recognize how important it is to Protect Your B.O.B.

You can learn how to Protect Your “B.O.B.” the “easy, inexpensive way,” or as Valerie did, that is, the “hard and expensive way.” As relationships are the heart of business, at all times you must always be on guard not to leave yourself vulnerable to losing the valuable good will and reservoir of trust you have built up over many years, for it may be your most valuable income-producing asset in employment and business. And even those whose jobs are not “customer-facing” have a “B.O.B.” of their own.

WHAT YOU CAN DO: In many ways, every employee – and surely every employee who interfaces with customers – has his or her own business “franchise” that needs to be protected. That “franchise” is comprised of his or her clients and customers who believe in them, trust them, feel better about being affiliated with the company because of them, and would prefer to continue to do business with them in the future. As the saying goes, “Trust is the residue of promises fulfilled.”

Business is a whole lot about relationships, and your financial success, job security and value to employers may well depend on your always “Protecting Your B.O.B.” or your Book of Business. Here are 10 ways to help you do just that:
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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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