Expatriation Archives

“Employer Ask You to Sign an Agreement? Ask Your Employer to Pay Your Legal Cost”

Published on September 9th, 2015 by Alan L. Sklover

“I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.”

– Steven Wright

ACTUAL “CASE HISTORY: Charlene, a furniture designer, had been with her employer for seven years. She was happy in her job, was well-liked, and quite productive. Her job was a short commute from home, and her manager was family-friendly. All was good.

One morning she received an email from the Human Resources Director, addressed to all of the company’s 150 employees, advising them that the company was updating all of its employment practices, and for this reason all employees were required to sign an updated “Confidentiality and Inventions Agreement” to safeguard the company’s trade secrets and proprietary information. (Rumor had it that a private equity firm might be interested in buying Charlene’s employer, and it was for this reason that a new, revised Confidentiality and Inventions Agreement was being required.)

The agreement was six pages long and contained a lot of complicated legal language. Charlene thought she understood it, but there was a lot “legalese” in it. She considered having our firm review it with her, but knew it would cost her a consultation fee of hundreds of dollars. When she called, she mentioned the unfairness of her employer requiring her to pay to review a document that they needed, not her.

We suggested she simply ask for the cost to be reimbursed. Sure enough, she did. After a few emails back and forth, her employer agreed to treat it just like any other business-related expense. Charlene was pleased. We were pleased, and now we suggest all employees in this situation do so. You never know. Sure is worth a shot.

LESSON TO LEARN: If you don’t ask, you won’t get. So long as any workplace request has the “Three R’s,” that is, it is (i) Respectfully presented, (ii) Reasonable in what is sought, and (iii) is based on a sound and logical Rationale, there really is no downside to making it.

The logic is simple: When someone wants something from you, and even moreso when they need it, there is nothing wrong with asking for something in return, especially the amount of money it will cost you to provide it for them.

Who knows? You might just get what you want. In this context, your chances are pretty good. Why not give it a try?

WHAT YOU CAN DO: In most – but not all – workplace instances of your employer asking you to sign an agreement, consider asking, in return, before you sign the agreement, that your employer agree to reimburse you the cost of an attorney’s review and consultation. Here are some tips in doing so:
Read the rest of this blog post »

“Claw-back: If no amount is stated, is it enforceable?”

Published on July 16th, 2014 by Alan L Sklover

Question: My employer has a “claw-back” agreement that extends 24 months beyond my repatriation from my expatriation in China.

While the items to be repaid are defined in the agreement, there is no dollar figure associated with any of these items. Is this still enforceable?

Lee
Shanghai, PRC

Answer: Dear Lee: The simple answer is “Yes,” but the best answer is “Yes, But.” Please remember that difference while I explain:

1. It is not at all unusual to find a financial obligation described in words without a corresponding amount set forth next to it. This is most often the case because, at the time that the agreement is written, the amount of the obligation has not been determined.

As one example, if your employer is entitled to “claw back” from you the value of any stock grant given to you if you should leave the company within 24 months of your repatriation, at the time of the agreement no one might have known the value of any such stock grant to be made.

As another example, if the “claw back” is for commissions paid during a certain calendar quarter, or relocation expense, the amount of such commissions or the amount of the relocation costs might not be known at the time of the signing of the agreement.

Look Before You Leap!! Get a copy of our 138-Point Master Guide and Checklist for Employees Contemplating Expatriate Assignments. Everything you forgot to ask about, and for, and then some! To obtain a copy, just [click here.] Delivered by Email – Instantly!

2. In fact, every lawsuit and arbitration has two phases: (i) first, it is determined whether or not a debt or obligation is owed; (ii) then, and only then, is it considered how much that debt or obligation might amount to. Lawyers and Judges call these two distinct stages of litigation (i) the “liability” phase, and (ii) the “damages” phase. And, as might be expected, the “liability” phase of a lawsuit involves “words,” “ideas,” and “concepts,” while the “damages” phase of a lawsuit requires numbers, calculations and simple arithmetic.

Let’s say your car and another car collided. The first question is “Whose driving caused the collision?” The second question is “How much – if anything – does the driver at fault have to pay the faultless driver?”

And in lawsuits or arbitration, it is often more difficult for a jury or an arbitration panel to decide the “damages” (or amount to be paid) than it is to decide the “liability” (or whether or not any obligation exists in the first place.)

3. Remember that, above, I said “The best answer is ‘Yes, but’?” Well, this is why: There are many defenses to “claw back” agreements, in fact, many more than you might imagine. In the law, we have what are technically called “Affirmative Defenses.” This means, quite simply, (i) “YES, I signed that agreement, (ii) BUT there is a good reason (or good reasons) I should not have to pay those monies back.” Hence the title “(i) Affirmative (ii) Defenses.”

Here’s a few of the many, many “affirmative defenses” that may be available to you: (i) YES, I agreed to pay the money back if I resigned, BUT I was really laid off and Human Resources let me tell people it was a resignation. (ii) YES, I did sign the agreement, BUT the reason I resigned was that I was almost raped by my supervisor one evening at the office. (iii) YES, I did agree to repay that money if I left the company, BUT the company required I work in China and my daughter’s asthma doctor told us she could die if we remained in China, so surely I couldn’t do that.”

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! 

4. By the way, although “claw back” and “repayment” are actually different, they are commonly used interchangeably. Technically speaking, “claw back” refers to “taking back” a payment of money made to you, such as (i) bonus, (ii) commissions, and (iii) leave of absence payments. Technically speaking, “repayment” refers to “reimbursement” of monies paid not to you, but paid to someone else on your behalf, such as (a) relocation costs, (b) tuition reimbursement, and (iii) your legal fees related to, for example, immigration issues.

That said, these days almost everyone uses the two terms interchangeably, and you should not be concerned if you or others use them incorrectly in a technical sense. To my mind, the ultimate test of word use is overall communication not technical accuracy.

5. In my experience, almost every employee has one or two good “Affirmative Defenses” to repayment obligations and, in any case, there is no downside to seeking either forgiveness or negotiated settlement. Claw backs and repayment obligations are good examples of how very “negotiable” employment and employment-related matters are. Employers do not want to spend many thousands of dollars to collect a rather small sum. Nor do employers want to let it get around that employees can – in fact – defeat collection efforts. And, too, some employers understand that you might one day be a prospective customer. This is one area in which I have found employers often negotiate or waiver in their efforts against employees much easier and more quickly than in many other situations.

Lee, thanks for writing in. I hope your employment transition is a smooth one, and that you consider challenging your possible – but not definite – claw back obligation.

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.

New Expatriate Request: “Pollution Perq’s”

Published on May 13th, 2014 by Alan L Sklover

Eight Popular “Bad Air Benefits”

“Fresh air impoverishes the doctor.”

– Proverb

ACTUAL “CASE HISTORIES”: 2013 seems to have been the year that employees who were given the opportunity, or the direct order, by their employers to relocate to certain cities – primarily in China – began to say, with determination, with concern and quite commonly, “I am concerned about the air and water quality,” and more and more began saying “I just won’t go, especially with my young children.” 

Employers have reported increasing difficulty in attracting candidates to accept positions in certain cities in the Asia-Pacific region that are known for poor air quality. Beijing and Shanghai are the two most difficult cities in the world to attract expatriates to move to, and not coincidentally, have some of the world’s most dangerous air to breathe. 

Major corporations, including Nestle, Panasonic and KPMG, are now offering inducements to accept expatriate assignments in pollution-prone cities. It’s a new kind of employee benefits commonly referred to as “Pollution Perq’s” or “Bad Air Benefits.” 

LESSON TO LEARN: If there is one message this blog puts forth, it is that the employment relationship is highly negotiable. In no context is negotiation so acceptable – and necessary – than it is in the expatriation experience. 

Simply put, if your employer is going to send you thousands of miles away, surely you have to think ahead and make sure it will take care of problems that arise in the process, including among them issues related to (a) immigration, (b) taxation, (c) education for children, (d) visits home, and (e) return home when the expatriate term is completed. Now, that list includes concerns for the harmful effects of polluted air and water. 

Expatriation is an experience that calls for the greatest of forethought, planning and, yes, imagination, as to the possible problems that might arise when you are far away from “home.” 

Recent experiences of expat’s in some of the world’s largest – and most pollution-prone – cities teach us that employers can be convinced that they must provide simple and basic protections from the potential problems that might arise due to extreme air and water pollution in certain cities. Those who face this experience would be wise to be both prudent and persistent in making necessary requests. 

For those contemplating an expatriate assignment, we offer a Model Memo requesting All Necessary Clarifications and Protections When Considering an Expatriate Assignment that you can adapt for your own use. “What to Say and How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!  

WHAT YOU CAN DO: Here are the “Eight Most Common Pollution Perq’s” you might consider requesting if you are asked to take a work assignment in a city known for its extreme pollution: Read the rest of this blog post »

“When moving from one ex-pat job to another, who is responsible for previous taxes and returns?”

Published on January 10th, 2012 by Alan L Sklover

Question: I was on an expatriated job assignment working overseas until January, 2011. I started a new expatriated job working overseas in February, 2011.

Which of my two employers is responsible for my 2010 tax returns and my 2010 tax equalization?

Jerrold
San Francisco, California

Answer: Dear Jerrold:                

1. We must start with the presumption that it is you who are solely responsible for your taxes and tax returns. I don’t mean to sound trite, but your tax returns, and equalization of your tax liabilities between one country and another is, in the end, your responsibility. It is for this reason that we encourage our clients to make sure, if accepting an expatriate assignment, that they have a firm, WRITTEN commitment from their employer to be responsible for expatriate tax returns and expatriate tax equalization

[For those readers who do not know what we mean by “tax equalization,” it is as follows: Suppose you live in the U.S. and your income tax rate is 35%. Suppose, too, that you work in another country where the local tax authorities claim you must file a tax return with them, and pay an income tax to that country, of 47% of your income. In fact, it is a real possibility that you may have to pay BOTH countries the taxes they demand. Ouch! By “tax equalization,” we mean someone preparing both countries’ tax returns for you, and paying you enough additional income so that, in the end, no matter who you pay how much tax to, how much you “take home” comes out “equal” as if you had remained working solely in the U.S. It is a complicated area of tax, and only a few large accounting firms do this kind of work. And it is very expensive. Tax equalization is an important benefit to request if asked to work in country other than your country of residence.]

2. It is possible, but highly unlikely, that the employer who began to employ you in February 2011 would have agreed to preparation of tax returns and tax equalization for 2010. While it is possible to negotiate anything, I have never seen an employer agree to be responsible for tax return preparation and tax equalization for a time period when you were not their employee. It just doesn’t make sense, unless you have presented some special reason why it may.

Look Before You Leap! We offer a Model Memo Requesting All Necessary Clarifications and Protections When Considering an Expatriate Assignment that you can adapt for your own use. “What to Say and How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!

3. It is more likely, and hopefully the case, that your former employer has agreed to attend to these matters and pay the bills for the tax-related services you need. If you worked for your former employer for the entire year of 2010, it is quite likely that they have agreed to attend to tax preparation and tax equalization for that calendar year. However, that is not automatic, or to be presumed, unless you and they agreed on that point before you went on your expat assignment. I have seen many, many instances in which my clients have forgotten to ask for tax return preparation and/or tax equalization, but presumed it was to be provided for them. Or, sometimes they have accepted a spoken assurance that it would be provided, but have no written confirmation of that.

I’ve written a newsletter entitled “Expatriate Assignments: The 18 Mandatory Requests” that lists and explains the most important services and benefits to request if you are considering an expatriate work assignment. To read it, simply [click here].

Jerrold, thanks for writing in. We have helped many people who have taken expatriation assignments over the years, and we hope this helped you, too.

If you should have difficulties while on your expatriates assignment, we offer a Model Letter for an Expat in Dire Circumstances. To obtain a copy, just [click here]. 

Best,
Al Sklover

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

© 2012 Alan L. Sklover, All Rights Reserved.

“Can an employer strand an employee overseas?”

Published on July 12th, 2011 by Alan L Sklover

Question: Hi, my question is I have a friend stranded in another country after he was sent there by his employer. He ran out of money and can’t get home. His friends and family, though poor, are having to pitch in money to help him return.  

Can an employer transfer an employee to a different country, far away from home, and then refuse to bring that employee back to his home country? What is your advice to him? Thank you.

Wynn M.   
New Market, Alabama

Answer: Dear Wynn,        

Your friend’s situation is frightening, but I must say I’ve heard stories like his before.       

1. A transfer to another country does not necessarily mean return when the work assignment is over. Though it may seem odd, or even crazy, if an employee and an employer agree that the employee will begin working in another country, that does not necessarily mean that the employer will arrange for, or pay for, the return of the employee to the employee’s home country at the end of the assignment, or when the employment ends. It probably should be implied, or required, but sadly, it is not.

Look Before You Leap!! Get a copy of our 138-Point Master Guide and Checklist for Employees Contemplating Expatriate Assignments. Everything you forgot to ask about, and for, and then some! To obtain a copy, just [click here.] Delivered by Email – Instantly!

2. It’s really a matter of “Look before you leap.” Like so many situations in life, one must think ahead to “What’s next?” and then, again, to “What’s next after that?” It’s like defensive driving of an automobile: you must continually look left, center and right, and continually say to yourself, “Who could possibly hurt me, and how can I avoid that?” It’s the same thing with employers.

You don’t have to drive – or work – defensively, but then again, you don’t have to survive or remain uninjured, either. Though hindsight is always 20-20, I would ALWAYS recommend to an employee not to accept relocation unless that relocation was followed by guaranteed return-relocation.

I’ve written a Newsletter entitled “If You’re Asked to Relocate, Think Ahead to Your Need for Re-Relocation” that covers this topic. If you’d like to read it, simply [click here].

I’ve also written another Newsletter entitled “Expatriate Assignments – The 18 Mandatory Requests.” that covers this topic for those sent to other countries by their employers. To read it, simply [click here].

3. As I often recommend, I suggest your friend contact the Board of Directors of his former employer, and tell them of his plight. This is the path I recommend, and without delay. Though it is not foolproof, there’s nothing to lose and everything to gain. The letter needs to be respectful, detailed and sent in such a way that its receipt cannot be disputed, such as FedEx or UPS. Its envelope should be marked “Personal & Confidential.” 

We offer a Model Letter for people in your friend’s circumstances. It’s entitled “Letter from Expatriate/Relocatee in Untenable Circumstances to CEO and Board of Directors.” If you’re interested in obtaining it for your friend, just [click here].

4. Bottom line, though, is we must always be prepared to rely on (a) self, (b) family, and (c) friends. I don’t at all mean to come across either cold or pessimistic, but bottom line is we must all look to ourselves, our families, and our friends for help in difficult times. Expecting help from an employer, or former employer, in such a circumstance – without having an agreement beforehand regarding return relocation – is just not realistic. An employer is not a friend, and not a family member.

Fortunately for your friend, he has you. And, chances are he also has both family who might help, and other friends like you. I applaud your writing in for your friend, and expect you and others who care for him will “be there” to the extent he needs you at this time of difficulty.

Wynn, thanks for writing in. I hope this has been helpful to you, and to your friend. And I hope by sharing your friend’s plight, you’ll help countless others avoid the same for them.

Best, 
Al Sklover 

P.S.: We also offer a Model Memo requesting 16 Necessary Clarifications and Protections When Considering an Expatriate Assignment that you can adapt for your own use. “What to Say and How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!

© 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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