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.”™

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

 
“ For those who have fought for it,
life has a flavor the protected will never know.”

– Author Unknown

ACTUAL CASE HISTORY: Are you or a loved one a member of the U.S. Armed Forces? National Guard? Reserves? Being called up for military service or training? Considering signing up for service or training?

If so, there is a U.S. federal law that you should know about. It provides very valuable employment-related legal rights to members of the armed forces and other uniformed services who are absent from work due to military service or training. The name of the law is the Uniformed Services Employment and Reemployment Rights Act, commonly called “USERRA.” USERRA seeks to minimize disruption to the lives of service members by ensuring that they are able to retain civilian employment and benefits while serving their country.

Simply put, USERRA provides those who perform military service (a) continuation of certain benefits during their military service, including health care coverage, (b) re-employment rights to employees of civilian employers who are returning from military service or military training, and (c) certain rights and benefits upon return, including seniority.

The idea underlying the USERRA law is to ensure that serving your country is as least damaging to your career as possible, while balancing the varied interests of the military, the employee and the civilian employer.

LESSON TO LEARN: The United States holds its military, including its members of its military and all uniformed services, in high esteem. Not only does the U.S. each year spend more on its military budget than do the next 17 countries combined, but it does a lot to care for service people during and after they serve.

One thing the U.S. does for its military service members that many are not aware of is that it gives them legal rights to (a) continued benefits during their military service, (b) re-employment in their civilian jobs after their service, and (c) no loss of accrued pension time, tenure and the like after their military service.

Those who train and/or serve in the uniformed services, as well as their loved ones, should take the time to understand these very valuable legal rights. They are far and away above any such rights given to others in American society.
The three most important things that you need to understand and take away from the Q’s and A’s below are:

(1) NOTICE: It is important that you give written pre-departure notice, and timely pre-return notice, as well, to your employer;
(2) RECORDS: Service members are advised to do all they can to maintain military records, including signed orders, that may be helpful in asserting USERRA rights; and
(3) RETURN TIME: Depending on the length of your absence for service time or training, the service member will be required to report back to work within a specified period of time.

WHAT YOU CAN DO: Take the time to understand the legal rights provided to members of the U.S. uniformed services, just in case someone you know and care about may be affected. The following are the most frequently asked questions about USERRA, and the answers, including who is eligible, what USERRA rights are, and how the law works:
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“If you don’t want anyone to know what you are doing, just don’t do it.”

– Yiddish Proverb

ACTUAL CASE HISTORY: Amy, a friend of many years, called my office one day, asking if she might speak with me confidentially. And she didn’t want to speak on the telephone. So we agreed to meet in a coffee shop the next day.

What she shared with me was quite unusual, and disturbing: she was a Senior Project Manager with a large real estate and construction firm. For almost a year she had been working on the construction of one of New York City’s most famous “new landmarks” and had encountered a problem. She was asked to do something that made her nervous. She didn’t know what to do.

Recent tests on the building’s concrete foundation showed mixed results. Since the tragedy of 9/11, foundation strength standards had been raised, and only about 2/3 of the building’s tests showed sufficient strength. Although not really a part of her job, she was brought in to the central office and was asked to “cherry pick” the positive reports, and discard the reports showing deficiencies, before submission to the City’s Department of Buildings. To say the least, she was frightened.

At least those were the facts as Amy knew them. Since she was not an engineer, and was not specifically trained in reading the reports, she was relying on the discussions among the engineers on site. She understood that there was a problem from conversations with engineers she believed to be knowledgeable in these matters. And she was suspicious from the very moment she was asked to present these reports to City officials and insurance representatives, as her usual duties had nothing to do with foundation tests. Was she, she wondered, being set up as a scapegoat?

Was there a “right” or “ethical” thing to do? Whatever was the ethical thing to do, could it hurt her job and career? These were very weighty concerns.

LESSON TO LEARN: Issues like the ones Amy faced are not that unusual. These days, it seems nearly every company is under pressure from investors and others to (a) cut corners, (b) bend the rules, and (c) twist the truth, usually in the name of cost savings or deadline pressures. It seems more often than in previous times that commercial considerations are coming into direct conflict with ethical concerns.

The issue might be one of public safety, or it might be a matter of tax evasion. Or pressures to cheat customers. One day it might be one issue; the next day it might be a different one. Whatever the issue, the dilemmas abound. It’s often hard to know what to do, when competing pressures are upon you. And those pressures can take their toll.

For those in this circumstance, we offer a rather simplified analytical tool that we sometimes call “The Six Questions to Ethical Clarity.” It is a set of basic, simple questions to ask yourself to figure out what is right to do when you’re simply not sure.

One thing about what is “right” to do: it can depend on one’s experience, one’s perspective and one’s judgment. That is, we all sometimes have “blind spots” in different situations. For that reason the question “Is it right to do?” often suggests getting the views of others with experience, perspective and judgment you trust. Just think about it: even the greatest ethicists of all time can and do disagree at times about “Is it RIGHT to do THAT?

WHAT YOU CAN DO: We do not claim any exclusive right to these six questions, because the ideas underlying them are commonly found in published articles, like this one, about ethical dilemmas in different situations. However, we present them to you in the context of issues that arise during employment, along with certain insights gleaned from the our client experiences over three decades.
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“I got a job working for a hostage negotiator.
One day I tried to call in sick, but my boss talked me out of it.”

– Anonymous

ACTUAL “CASE HISTORY”: Thomas was an experienced software coder. He was registered with an employment agency that regularly placed him on coding projects with its customers– usually for three to six months at a time. He was considered an “independent contractor” and earned $35 per hour for his efforts, without benefits. The employment agency handled all of the details of his assignments, collected the fees from the customer, and then paid Thomas for the hours he worked. It was part of a significant trend that many people refer to as “outsourcing” or “employee leasing.”

As is quite common in these “outsourcing,” “agency,” “contracted” or “leased employee” arrangements, Thomas worked at the offices of the employment agency’s clients, on the projects they assigned to him, often alongside their own employees, told what time to arrive and leave, where to sit, and always under their supervision. Somehow, he was not considered their employee.

One assignment for a large financial institution was particularly demanding, with very complex objectives that needed to be completed within an unusually short period. After two of the team’s five coders quit, Thomas ended up working through many nights and over many weekends to meet the project’s demanding deadlines.

After his financial institution assignment was completed, Thomas asked his employment agency whether he was eligible for overtime pay for the extraordinary hours he had put in. He was told “No,” as overtime pay was given only to “employees” and that he was an “independent contractor.”

When Thomas contacted us for a telephone consultation, we disagreed with what he had been told. Not only was he entitled to all of the payments, benefits and legal rights of an “employee” – including overtime – but he could demand those payments, benefits and legal rights from both the employment agency and the large financial institution that had “leased his services.”

Because the employment agency feared that Thomas would request overtime from the large financial firm, or perhaps that Thomas might even tell other temporary coders he worked with that they were entitled to employment benefits, such as overtime, they quickly paid up all overtime due Thomas, which was a very tidy sum. This was a vivid illustration of the “joint employer liability” doctrine in action.

LESSON TO LEARN: If you are a “contract,” temporary, “contingent,” seasonal, “leased,” “outsource,” or “independent” worker, in the eyes of the law you may well be an employee and, what may seem odd to some people, of two companies. Thus, both your employment agency and the agency’s customer for whom you toil may be liable to you for payments, benefits and rights denied to you.

Example: Department stores are not hiring “seasonal employees” at year-end holiday time, as they always used to do, but instead are increasingly turning to “temp agencies” to hire them and then “lease them” back to the department stores.

Example: Law firms are hiring “contract lawyers” who sometimes work for them for years at a time, but are nonetheless not considered by them to be their “employees.” These “contract lawyers” have the same law licenses as other attorneys at the law firm, do the same work as other lawyers, are supervised by the same people who supervise other lawyers, and work in the same offices as other lawyers. But, somehow, they do not get unemployment insurance, Social Security benefits, or protected leaves of absence that all employees are entitled to under the federal Family Medical Leave Act.

Example: Nurses in hospitals are being hired through “placement agencies” to do the same work as “employed” Nurses. But these Nurses are being denied overtime, the right to file sexual harassment complaints, paid vacation, and at times workplace safety protections.

How does this save employers money? By “outsourcing” much of the work they need to get done, companies are avoiding the considerable costs of employee benefits, payments and protections the law requires employers provide employees, such as (a) overtime, (b) unemployment benefit contributions, (c) payment of Social Security contributions, (d) Workers Compensation coverage for on-the-job injuries, (e) unpaid medical leave, (f) occupational safety, (g) even protection from harassment and discrimination.

The law, though, is not blind. It recognizes that quite often this kind of “outsourcing” of work is a charade, a subterfuge, and a deception. After all, if it was so easy to use another company to avoid employer obligations, no company would be an employer. It would be the end of “employment” as we know it.

Temporary, “on call,” “leased,” seasonal, contract workers, and others should be aware that the law provides that many of them are employees of BOTH (1) their temp assignment agencies AND ( 2) the companies on whose behalf they toil – just like employees

Recently, “joint employer liability” (sometimes called “co-employer liability”) has been applied to companies with a “franchise” business model. For example, in the fast-food industry many large companies are “franchisors” who sell the right to use their corporate name to smaller local “franchisees.” The law is increasingly making such large “franchisor” corporations, such as McDonalds Corporation, Dunkin Donuts and Wendy’s liable for unpaid wages and denied benefits to those who toil for their many locally-based franchised store operators, even if they have been labeled “independent contractors” or the equivalent.

WHAT YOU CAN DO: If you believe you may be one of those many workers who is treated as a “second class employee,” and may be due payments, benefits and legal rights and protections from a “joint employer,” you would be well-advised to consider the following:
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“Most pioneers end up with their face in the dust and an arrow in their back.”

– Unknown

ACTUAL “CASE HISTORIES”: About 15 years ago Emile came to us after a rather disturbing job loss and career stumble. He had been a tenured Professor of Linguistics at a major university and had received an offer that, for him, was almost too good to refuse. A major financial services firm in New York had approached him through an executive recruiter to spearhead a major initiative regarding linguistic, economics and artificial intelligence.

Simply put, the firm’s Senior Most Management thought it would be a great idea and a profitable one, as well, to rationalize the words that its many divisions and subsidiaries used on a daily basis. For example, if only the word “profit” meant the same thing to a bond trader in Tokyo as it did to a Credit Analyst in New York and to a derivatives salesman in London, too. Likewise for the words “earnings,” “net income,” “annual return” and “free cash flow.”

For a full year an Executive Recruiter searched for the perfect candidate and came back with Emile’s name and resume. Because he had a strong background in both linguistics and economics, he seemed ideal for the challenge. The offer made to Emile was almost 10 times more than he had ever earned in a year. He accepted, and began his new job shortly after the end of the then-current semester.

After Senior Most Management approved a plan, a timeline and a budget, and Emile hired a small but impressive staff, Emile began his tour of the firm’s offices in all of the world’s major financial capitals. His plan was very detailed and well thought out. His execution of the plan was impeccable. His meetings were promising. His results were disastrous.

It turned out that the traders in Tokyo had no use or patience for a new set of words: their clients, customers and clearinghouses had no interest in changing – or re-learning – the meaning of words and phrases that had universally used in their trades for many decades. The same was true for the derivative salesmen in London, the foreign exchange salesmen in Dubai, and the precious metals traders in Hong Kong. When they were not derisive of Emile’s efforts, they were simply ignoring them.

Sure enough, Senior Most Management soon closed down the project, thanked Emile for his four months of efforts, and terminated his services. No notice. No severance.

That great idea didn’t go too well, did it?

LESSON TO LEARN: Change is surely needed, even in the most successful of endeavors, because competitors are making changes every day and we have to change to survive. Unless companies continually adapt their changing business climates, they will sooner or later go the same way as the dinosaurs. It’s great that you are a transformative person who is going to make transformational change. But don’t think it will be without danger.

Face it: If you are going to be a transformative “change agent,” then you are going to be feared and perhaps even despised by certain people, and perhaps even powerful people, not necessarily due to the changes you will likely make, but because of the changes you just might make.

Accept it: If you are going to make transformative changes, then you are going to make some people uncomfortable, and perhaps even upset. Even if the changes you expect to make are good for the company, and in the overall interests of all.

Deal with it: If you are successful in improving the processes and people in a new context, you are going to make those who are already working in that context, and doing the “usual thing,” look less than perfect.

Think about it: These days, you don’t need to have the words “Change Agent” tattooed on your forehead or printed on your business cards to be hired as a Change Agent. Even if you are not given such a clear title and role, chances are if you are a creative, dynamic, and energetic “new person” you will be viewed or treated as someone who might suggest change.

Get ready for pushback: If you are going to make changes, you are going to get pushback, sometimes benign, sometimes evil, sometimes in ways you don’t see, and sometimes in a kind of “language” you don’t understand. As I often counsel clients, and not necessarily referring to sex, “Be extra careful until you know ‘who is sleeping with who.’” There are many “webs of connection” and complex relations at work in any organization.

I have come up with something of a set of principles, that might prove useful to you in navigating your transformative efforts. We call it “The Seven P’s to Protect Change Agents.” Read on.

WHAT YOU CAN DO: To better prepare and protect yourself in going into a transformative “change agent” role, consider these “Seven P’s To Protect Change Agents”:
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