The Employment Relation 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.”™

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

“What is Joint Employer Liability?” Many Workers Have Two Employers, But Don’t Know It

Published on October 21st, 2015 by Alan L. Sklover

“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:
Read the rest of this blog post »

“How should an employer treat an employee who works for a competitor?”

Published on April 21st, 2012 by Alan L Sklover

Question: Hi, Alan. I have an employee working for me as a gymnasium instructor between 15 and 30 hours per week as required by the business, on a casual basis, without a written contract, for the last four months. He is always available as I require when I give him one week’s notice.

I have now discovered that when he is not working for me, he works on a casual basis for a company in direct competition to me.

What are your thoughts on this? Best regards. 

Seamus
Waterford, Ireland

Answer: Dear Seamus: As you might know, I usually do not give advice, counsel or suggestions to employers, but your note encouraged me to make an exception.     

1. If your employee does good work, and meets your needs, you would likely want to retain him. More and more, employers are coming to understand that their business success requires that they hire and retain the better – if not best – employees. From your letter, you seem happy with your employee, and from how you have described him, he seems to be a good performer, flexible, and conscientious. What more could you want?

2. If you want a “commitment” from your employee, you have to give a “commitment” to him. I hope you don’t feel that your employee has been “disloyal” to you or your company because, when you don’t give him hours to work, he gets hours to work from your competitor. “Commitments” run both ways: you generally do not get them unless you give them, as well. 

3. Since your competition also seems to find your employee to be helpful to its business, it seems that the two companies may well be – or become – in competition for the employee’s services, too. I’d say that not only are you and your competitor in competition for customers, but you are also in competition for those employees who help you attract and retain customers. At the present time, everyone seems comfortable with the flexible arrangements, but chances are, sooner or later, someone will want more hours or different shifts that will likely upset the present comfortable arrangement. When that happens, you might just lose a valuable employee.

Don’t forget: if he is good with customers, and you either fire him for alleged disloyalty, or do not treat him well, then when and where he goes, his customers may follow him, perhaps right into your competitor’s gymnasium.

4. You might try demanding he sign a non-compete agreement, but I doubt that will work. My experience leads me to expect that most employers in your shoes would be tempted to insist that the employee sign a non-compete agreement, in this way locking him away from working for your competitor. Non-compete agreements rarely work, often backfire, and might just drive your good employee to quit and go to work for your competitor.

5. My suggestion: Treat him better than anyone else would – especially your competitor – and chances are you will keep him, and get the best from him, including loyalty. There is an old saying, “Pay peanuts and you will only hire monkeys.” In life, in business, and in the workplace, you can pretty much count on one thing: you get back what you give.  

In sum, Seamus, a good employee is hard to find, and harder to keep. Ask your good employee what motivates him, and then go about motivating his good performance, his good attitude, his flexibility, and his loyalty. Those are my thoughts. I hope you will give them consideration.

And, thank you, for writing in from Ireland.

My Best,
Al Sklover

A popular “Ultimate Package” of Form Memos and Checklists is Our “Ultimate Resignation Package”Includes our 100-Point Checklist. Want More Info? Just [click here.]

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

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

© 2012 Alan L. Sklover, All Rights Reserved.

 

“Does an independent contractor have a duty of loyalty?”

Published on October 2nd, 2011 by Alan L Sklover

Question: If an independent contractor is a subcontractor to a business, can the independent contractor bid against that business on a totally unrelated project? That is, does an independent contractor have a duty of loyalty, like an employee has?

Also, can an independent contractor be liable for anything under the law of agency?

Dawn
Honolulu, Hawaii

                                                                    
Answer: Dear Dawn: As you may know, I am not licensed to practice law in Hawaii, and am not familiar with its laws. However, I can share with you my understanding, gained over many years, of the law in most of the United States, and elsewhere, as well:

1. An independent contractor has only those duties to its client that it has agreed to. The relationship between an independent contractor and its client is an “arms-length” relationship. It is created by agreement, and is limited by the limits of that agreement (whether in writing or spoken.)

Unlike an employee, who has an implied duty of loyalty to his or her employer, an independent contractor has no duty of loyalty under the law to the other party, unless that independent contractor has agreed to such a duty in an agreement. So, an independent contractor has every right to compete with the party to which it is an independent contractor.

2. That said, an independent contractor is bound by the common law that forbids, for example, theft of secrets. While direct competition with an independent contractor’s client is fine, an independent contractor cannot, as examples, take advantage of confidential or proprietary information of its client that it may have learned of in the course of doing business, for that would be common law theft of trade secrets, or take equipment or supplies, for that would be considered theft of property.     

3. In turn, the client of an independent contractor is also bound only by its agreement, and nothing more. In turn, the business who hires an independent contractor has essentially no duties to the independent contractor, except as is set forth in their agreement. So, a client of an independent contractor is not required by law to provide that independent contractor with the things it has to, by law, provide its employees, including (a) a safe workplace; (b) overtime; (c) unemployment insurance; (d) workers’ compensation; or (e) social security contributions.

4. An independent contractor who has agreed to act as an agent is bound like an agent. An agent is someone who acts in the place of, and on behalf of, another person or entity. Independent contractors sometimes act as agents for others, such as when an attorney (who is an independent contractor to his or her client) acts on behalf of his or her client in negotiating a business deal, and on behalf of that client may agree to deal points or even sign a contract. If an independent contractor acts as an agent, then that independent contractor is liable under the law of agency. It’s that simple. Incidentally, the “law of agency” is a reference to the principles of law applicable to agents and their “principals,” which principles of law vary little from state to state.  

If you’re interested in obtaining a Sample Independent Contractor agreement that you can adapt for your own use, simply [click here]. 

Hope this helps. Thanks for writing in. Please consider subscribing, because that way, you can pick up more pointers each day. And – it’s free!

Best,
Al Sklover

Looking for a Job? We offer a Model “Thank You” Letter After an Interview. To obtain a copy, [click here.]

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

© 2011 Alan L. Sklover, All Rights Reserved.

“My new job is not the promised job. What do I do?”

Published on July 28th, 2011 by Alan L Sklover

Question: Hi, Alan, I am a Corporate Communications professional and have recently changed jobs. I have joined a multi-national corporation which is undergoing a complete restructuring. In fact, the top brass of the company will soon be leaving when new people are taking over.

Now, before joining this company’s Internal Communications function, my new boss and I discussed the job description, and my function, which was to link up with the Global Marketing Team.

I was very much in agreement with the details of the job description and my intended function, but after 40 days of the job things are not like it was promised! I feel cheated. My work is totally administrative in nature, and they say it is going to remain like that!

I do my work with utter professionalism and great care, and nobody has raised a single question about the quality of my work. I feel stuck here with no clue as to what I should do. I am concerned that I am reacting too early on my new job. Please Guide.

         Vartika   
         New Delhi, India

Answer: Dear Vartika,         

From what you’ve written, I share your concern that you are reacting too quickly. Many, many times I have been consulted by clients who, just weeks into a new job, feel they have made a mistake. While many have, indeed, made mistakes, many times after remaining a few more months, they have become quite happy. Here are a few thoughts I have on your situation:          

1. When organizations get new management, there is often a great deal of confusion; this can be both good and bad for employees. The two things you have written that stand out the most to me is that (a) the company is “undergoing a complete restructuring,” and (b)  the top brass will all soon be leaving. I can’t imagine a more “up in the air,” confused environment to find yourself in. It will surely take months, if not years, for things to “settle down” and run smoothly again. This may well be the reason for your job function not being consistent with the promised job description, and therefore, your disappointment and frustration.

The good part about such confusion is that it also means that other people are “in the same boat,” and many of them will likely “jump ship.” So, you can almost expect that many opportunities will open up in coming months – more than they usually do – and you may be able to take on one of those soon-to-exist opportunities.

2. It often takes months, if not years, to truly understand how a company really works. Over many years, I’ve learned that it takes a long time to truly understand how a company really works. By this I mean, even if you are told (a) who makes decisions, (b) how decisions are made, and (c) that decisions will not be changed, that means little. Things are often not what they seem, and almost never what people tell you they are.

Rather, things work in far different ways. The only way to really understand how things work in a company is to remain there for a decent period of time and while there to (a) observe, (b) watch, (c) listen, (d) take in, (e) scrutinize, and (f) contemplate. You’ve surely not had time to do that, at least not yet with sufficiency. You just might learn that, regardless of what you’ve been told, your job function may change, to your liking. 

3. If you want new responsibilities, first show you can do a great job on your present responsibilities. The best way to get those job functions you seek is to be 110% successful in fulfilling your present responsibilities. Only then will you be able to say to those working with the Global Marketing Team, “I can also be 110% successful for you.” I suggest that, although you might not be inspired by the totally administrative duties you have been assigned, you would be wise to come into work every day totally ready to be the best administrator anyone has ever seen. Be passionate, productive and impressive in all you do in this job, and others will be offered to you. Be pessimistic, bored or lackluster in this position, and you will be hurting your chances of getting the job functions you seek.

4. Even if you decide to leave, I suggest you wait at least until the next calendar year to do so. Even if this job has been a true career error, I suggest you commit yourself to remaining in it until January of next year. First, many people leave their jobs in January and February of each year, and – both internally and externally – there will be more job opportunities then. Second, your resume will show you arrived on your present job in one year, and left the following year, which will look more substantial than if you arrived this year and left this year also. Third, and probably most important, you will be giving yourself the time I think you owe yourself to figure out if this employer might be where you ought to remain. You might just decide this is, indeed, the place for you, and a great place to grow. 

No matter what you decide to do, I hope you will commit yourself to do it well, to do it professionally, and to do it with the information and “working wisdom” we offer on our blogsite.

Thanks for writing in. I hope you’ve received the guidance you requested. And please tell others in New Delhi about out blog. 
         

Best,  
Al Sklover

Don’t forget: we offer Model Letters, Memos, Checklists and Form Agreements for almost every workplace issue. Just [click here.]

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

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© 2011 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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