Withdrawal by the Employer Archives

“Fired after I resigned; will it affect my open job offer?”

Published on October 22nd, 2014 by Alan L. Sklover

Question: Dear Alan: About a month ago I resigned from my job to join a different employer. A few days ago, I was terminated from my present job by my employer’s Surveillance Team for unknowingly emailing a private document to my personal email. I was told to turn over all of my company ID’s and take my personal belongings and leave the office.

I had planned to leave anyway, and had a job offer outstanding. I am scheduled to start that new job in about a month. Do you think what has happened is likely to affect my job offer?

Do help me.

Sacked
Mumbai, India

Answer: Dear Sacked: I believe that the odds are that what has happened will not affect your open job offer. Here are my thoughts: Read the rest of this blog post »

“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

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© 2013 Alan L. Sklover, All Rights Reserved.

“Job offer rescinded after I quit my other job; are they liable?”

Published on August 17th, 2011 by Alan L Sklover

Question: I was offered employment in writing, a start date, and wage was included in the letter. It was signed by the Regional HR Manager.

I quit my current job to start the new one. The day before the start date I was told that the offer was made in error, that corporate approval was not received first. I am now jobless.

Are they liable?

David
Apple Valley, California

Answer: David, your experience is far more common than you might think. Here are my thoughts and suggestions:

A. Historically, the general rule has always been that employers are not liable for withdrawn job offers. As a general rule of law, where neither side of the “contract” had begun “performing” its duties, then the “contract” is usually considered unenforceable. Additionally, if your offer letter did not provide you with a minimum length of time that you were going to be employed, then the law says, “The employer could have halted the relation after just a few seconds or minutes.” For this reason, it has always been held, you had no reasonable expectation to believe that you would be kept on board for more than, say, a minute of employment. Thus, the theory of “broken promise” or “breach of contract” has never provided relief for employees who have suffered in this way.

B. However, in more and more states – including California – it is becoming possible to hold employers liable for withdrawn job offers. Quite gradually, laws, judges and juries are starting to hold employers liable for withdrawn job offers. The theory is called “reasonable detrimental reliance,” or to use lawyers’ words, “promissory estoppel.” In at least one California Court, an employer has been held liable for an employee’s financial losses in this circumstance. (Toscano v. Greene Music (2004)).  In addition, a California law – California Labor Code Section 970 – gives employees double their damages if the offer of employment was done under false pretenses as to (a) the existence of available work, (b) the kind of available work, (c) the length it will likely last, or (d) the compensation.   

C. First I suggest you write and request – respectfully but forcefully – that the employer provide some recompense to you. As I quite frequently do, I suggest you do your best to seek recompense from your “almost-employer” for the losses you suffered by giving up your then-current job, and the cost of preparing to take your almost-new job. I am a big believer in asking before threatening, as it is so often more effective and less expensive. So often people overlook this possible way to getting what they want, and proceed directly to lawyers. I’d rather people first try, themselves, to help themselves.

If you’d like to obtain a Model Letter entitled “Job Offer Made, Then Withdrawn – Requesting Recompense,” simply (click here). This is one of the very most popular Model Letters we offer.

D. If that does not work, then I suggest you consider consulting with an experienced employment attorney. Sadly, but perhaps fortunately, employers know that juries are not all that sympathetic when employees have been mistreated after having done nothing to deserve mistreatment. The specter of legal action sometimes is what it takes to get them to be accountable for their actions. This might be a course of action, depending on what an experienced attorney might suggest.

If you’d like to obtain a list of experienced employment attorneys in the Los Angeles area, simply (click here).

David, being “fired before you are hired” is like a double blow, because not only are you out of work, you don’t know why and cannot offer anyone an explanation for what happened to you. I hope you will not hesitate to stand up and, in effect, ask your almost-employer to act in a “stand up” fashion.

I hope this is helpful. Thanks for writing in. Please consider subscribing to our Blog – you get daily posts and it’s free. And, too, please consider clicking to and using our advertisers; that’s what keeps us here.   

Best,
Al Sklover

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"


 
© 2011 Alan L. Sklover, All Rights Reserved.

“Can my employer simply reduce compensation promised in my offer letter?”

Published on August 3rd, 2011 by Alan L Sklover

Question: My company recently decided to stop paying employees an $80 per month cell phone allowance, and instead decided to provide company cell phones.

On the “Letter of Intent” offer that I signed it clearly says under “compensation” that I get the cell phone allowance of $80 per month.

Is it legal for the company to stop paying me the allowance, or do I have a case? 

Jim   
Rock Hill, South Carolina

Answer: Dear Jim,       

1. Unless your have an employment contract that guarantees you a certain period of time as an employee, both you and your employer are free to end the employment relation at any time. Very few employees have an employment contract and “letters of intent” and “offer letters” rarely, if ever, contain a commitment to employ someone for any set period of time. As you may know, this is referred to as “at will” employment, and nearly all employees are in this circumstance. In fact, most letters of intent and offer letters use that very phrase: “at will.” 

2. For that reason, both the employee and the employer are equally free to say to the other: “I want to change the terms of our employment relation.” So, for example, an employee can say, “Boss, if you want me to come back next week, I want double my present pay.” And, for a different example, an employer can say, “Employee, if you want your job to continue next week, you must accept that you will only get half the pay.” Sometimes it is the employee who wants to change the terms of the relation; sometimes it is the employer. If the employee and the employer do not agree on new terms of the relation, they can simply go their separate ways.

3. So, it is entirely legal for an employer to change the terms of compensation or benefits at any time, as your employer has done. During times of economic difficulty, many employers are doing what your employer has done. Remember, though, that in times of economic prosperity, many employees insisted on raises, better benefits, and the like, and that such times may come back again and, of course, hopefully that will be soon.

4. One thing employers cannot do is to change terms of employment retroactively. In other words, an employer cannot say on a Friday, “Starting last Monday, your pay is reduced.” That would be entirely unfair to the employee, who worked all week expecting his or her full pay. Instead, an employer can only say, “Starting next Monday your pay is reduced. That may not prove much consolation for you, but at least it does limit the harm that can be done.
 
Jim, I hope this is now clear to you. And I hope, too, that you understand the fact that such “freedom” to alter relations really is a two-way street, even though it may seem to you like “Unfair Avenue” at the time.

If this has been helpful, please consider subscribing to our blog– it’s free. And please consider, too, telling your friends about what we offer each and every day. 

Best, 
Al Sklover

Want to “Climb The Ladder?” Model Letter Requesting a Raise or Promotion “What to Say / How to Say It.™” 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.

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"


 

© 2011 Alan L. Sklover, All Rights Reserved.   

“If I can’t get a work visa, can an employer withdraw a job offer?”

Published on July 20th, 2011 by Alan L Sklover

Question: I signed a job offer to start a job in a few weeks. The company then withdrew the contract after we both signed due to the fact that they cannot get a working visa for me. The visa was not part of the contractual agreement. They now want a French-speaking person, which was not a part of my signed contractual agreement, either.  

Patrys
Burkina Faso

[Note to Readers: Burkina Faso is a country in Western Africa formerly known as “Republic of Upper Volta.” It is surrounded by six countries: Mali to the north, Niger to the east, Benin to the southeast, Togo and Ghana to the south, and Cote d’Ivoire to the southwest. It has a population of approximately 16 million. In Moore’ and Dioula, its major native languages, Burkina Faso means “The Land of People of Integrity.”]

Answer: Dear Patrys,         

To date we have been visited by readers from 190 countries, but to my knowledge, you are our first person to submit a question from your country. Thank you for writing in. As I’m sure you know, I am not licensed to practice law in Burkina Faso. However, my experience over many years is that certain elements of the law are quite common, and for one reason: they come from common experience and constitute common sense.  

Here’s the analysis I suggest:        

1. A contract has both “expressed” terms and conditions, and other “implied” ones, too. You are 100% correct to look carefully at what is expressed in your contract, and to look, too, at what is not expressed. However, every contract has certain terms and conditions that are implied within it, by law. That is because not everything can be set down in a contract, and some things simply must be “assumed” by both sides.

So, if a fisherman had a contract to sell fish to a restaurant, it would be assumed, and implied into the contract – even if it was not written in the contract – that the fish would not be rotten, or poisonous, or otherwise inedible. It would also be assumed, and implied in the contract – even if it was not written in the contract – that if a boat sank in a storm, and the fisherman drowned, he would not have to provide the fish. We can’t think of everything, and can’t list everything, in a contract, so the law permits certain “basics” to be implied, with the same effect as if it was written.   

However, if the contract provides for a penalty, then the penalty is effective. So, if the fisherman’s boat sinks, and the contract says, “No matter what, if no fish are delivered, for any reason, the fisherman must pay $100 as a penalty,” then the penalty is effective.

2. If an “expressed” provision or an “implied” provision or condition becomes “impossible,” then the contract, itself, often becomes “impossible.” (Lawyers call this “impossibility of performance.”) Sometimes, due to no fault of either party, the performance of one of the two parties – or even both of them – becomes simply impossible to provide. When this happens, the law in most places “forgives” that party from having to perform what he or she promised to perform. This “impossibility of performance” is a condition implied into nearly every contract.

So, if a ballerina promises to dance at a concert hall, but two days before she falls down and breaks both her legs, she is “excused” from her promise to dance that night due to “impossibility of performance.”

It’s the same thing for the owner of the concert hall: if the concert hall is struck by lightening, and burns to the ground, it does not have to put on a show for the ballerina, due to “impossibility of performance.”

Of course, if the contract provides for a penalty payment if either side does not perform, for any reason, then the penalty is effective.

3. Assuming the employer tried to get you a work visa, and could not, then I think that would constitute “impossibility of performance,” and excuse it from hiring you. If the company tried in good faith to get you a work visa, but was unable to do so, I would see this as an excusable “impossibility of performance.” It would be very difficult for you to determine that, but without some sort of showing that they did not try to get you a visa, there is nothing you can do, at least under the law of most countries.

4. Just as you are free to seek better pay from your next job, your almost-employer is free to seek a French-speaking person in its next person to hire. Regarding your second issue, there’s really nothing wrong with your employer deciding to seek a person who can speak French when it tries to fill the position in the future. It’s just like you seeking better pay from your next employer. It does not seem at all relevant to me.

5. All that said, you might send a respectful letter requesting some fee for your lost time. With nothing to lose, and everything to gain, don’t forget that the company might just be willing to pay you a few weeks, or even a few months pay, though it does not seem legally required to do so.

Job offer accepted, then withdrawn, leaving you in a bind? Consider our Model Letter entitled “Job Offer Accepted, Then Withdrawn – Requesting Payment of Losses.” Shows you “What to Say, and How to Say It.”™ To obtain your copy, [click here.] Delivered by Email – Instantly!

I’m sorry, Patrys, if this is disappointing, or even unfair. I will say that, while the law in Burkina Faso may be different, this is the law in most countries. You might consider seeking a consultation with a local attorney, but my honest expectation is that he or she will confirm how I see the situation.

Thank you so much for writing in. I hope and pray you find new work and an employer who values your work in the near future.

And I hope, too, that you will tell others in Burkina Faso about our blogsite.  

Best,
Al Sklover

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"


 

© 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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