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.

 
“The road to hell is paved with good intentions.”

– Proverb

ACTUAL CASE HISTORIES: Each year, without fail, I get five to ten emails from employees who have either (a) given a gift at work and gotten into trouble for doing so, or (b) received a gift at work that is either causing discomfort or a problem. As you might imagine, most of these calls come shortly before or shortly after the year-end holiday season.

LESSON TO LEARN: Today more than ever, you need to devote a measure of thought to (a) why you are giving a gift, (b) how it may be perceived or misperceived by the recipient (or others), (c) for what reason or purpose another person may be giving you a gift, and (d) whether that gift to you might be a sincere gesture, a thinly disguised bribe, or a “payoff” for past favors. In fact, when giving or accepting a gift at work, it is the potential perceptions of others that can be far more dangerous than your own intentions.

To prevent even the perception of impropriety, and to discourage even the slightest offense, many company policies, laws, rules and regulations have been put into place that address – and in certain circumstances prohibit – giving and receiving gifts at work, and in business affairs.

As examples: How might your gift-giving look to compliance officers who work for your employer? Might a rather expensive gift be viewed by Human Resources as a subtle form of sexual harassment? Might your gift be viewed with suspicion, or even anger, by the husband or wife of its recipient? Is a gift a sign of generosity, or perhaps a disguised bribe? If you give some, but not all, of your office mates gifts, might some of those “left out” perceive themselves as outcasts, or victims of favoritism or even discrimination?

I often say “These days you have two jobs: one is to do your job, and the other is to keep it. This is one context in which that surely applies. Since your gift-giving might result in a perception or accusation of misconduct. Before giving or accepting a gift at work, take just a few moments to review and consider the many possible interpretations of your gift-giving or gift-accepting behavior.

Do I intend to make you paranoid? Yes, I do, but just a little.

WHAT YOU CAN DO: Consider these 10 Practical Pointers on gifts at work:
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“A satisfied customer is the best business strategy of all.”

– Michael LeBoeuf

ACTUAL CASE HISTORIES: Rita was a highly regarded Senior Sales Account Manager for an industrial plumbing supplies company headquartered in Springfield, Illinois that catered to a handful of large construction firms in the Upper Midwest and Canada. Over 20 or so years, she had developed strong client relationships based in a deep trust for her good judgment and for her devotion to client interests. Her clients often said of her “If you need something, and need it ‘yesterday,’ you need to call Rita.” She had also built a small but effective support team around her.

Rita was recruited by a large competitor headquartered in Milwaukee, Wisconsin, to serve in a significant Business Development role, with the expectation that she would bring along her “Book of Business,” that is, her established network of clients and their business. While she was presented with a significant increase in compensation, she was not quite certain it was the right move for her clients, many of whom enjoyed “white glove,” personal treatment they had grown accustomed to over the years.

Wisely, Rita sought ways to protect her “Book of Business,” what some people refer to as her “B.O.B.” She sought one or more ways she could assure her clients and client referral sources that she would “be there for them” whenever and however they needed. She sought, too, a way she could always keep her support team with her.

Her primary concern was that she would join the new company and, in any agreements, somehow lose access to her critical business relations. What might happen if she left the new company, or was asked to leave, for any reason? Like most employers, her prospective employer required their employees sign to a non-compete agreement, prohibiting them from providing services to “the company clients,” which is precisely what “Rita’s clients” would become, if she let that happen.

Rita would also be required to sign a “non-solicit/non-hire” agreement, barring her from taking any members of her support team with her, in the event she left or was asked to leave.

We helped Rita solve these two problems with the use of “Key Man / Key Woman” clauses that her prospective employer reluctantly agreed to, in order to “acquire” Rita, her team, and most especially, her clients. So, if for any reason Rita left the new company, or if for any reason she was not in charge of her clients’ business, Rita’s clients could take their business – and take Rita and her team, too – to another company.

LESSON TO LEARN: As an employee, you are referred to as a “Human Resource.” I happen to deplore that term, as I find it to be a dehumanizing phrase. But, as a “Human Resource” you may be seen as a “source” of new, additional, and very valuable business from new, additional and very valuable clientele. This is precisely why we use “Key Man / Key Woman” clauses and agreements: to offer that to your employer, but to always maintain your access to your “B.O.B.,” and your “B.O.B.”‘s access to you.

Good relations with staff members, colleagues, vendors, customers and clients are of critical value in every business and profession. That is why employers try so hard in numerous ways to ensure that their employees do not “steal” them, even when it was the employee, himself or herself, who brought the client to the employer. It is beyond question that it is in your own best interests to try to keep those valuable business relations, to prevent their “theft” from you, no matter where you are, where you go, or what you do.

Having good, strong, close relations with clients and customers makes you the “rain-maker” that is one of the most important attributes of a successful business person. Having good, strong, close relations with colleagues makes you the “magnet” that can attract, maintain and take with you the best and brightest of talent. Having good, strong, close relations with support staff gives you the ability to move your business to its most fertile location and have intact, when you need it, reliable, trustworthy, confidence-enhancing support.

We see many Key Man / Key Woman clauses in contracts used by sport agents and agents for movie/TV talent. It is not common knowledge, but a good number of senior executives request in their own employment contracts that provide that, if the CEO should depart for any reason, be it voluntary, due to disability or death, or involuntary, due to misconduct reasons or otherwise, they have the option, but not the obligation, to depart free from further obligations and continuing restrictions to the employer.

“Key Man / Key Woman Clauses” are one of the best ways to protect your “key business relations.” And, if you may have the leverage to safeguard your own “key business relations,” why not at least try?

WHAT YOU CAN DO: If you have such key business relations – and so many people do – consider the use of Key Man / Key Woman clauses to protect them. Here are some very valuable pointers:
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— Danger Ahead:
Beware the Danger of “Likely Successor Risk” —

In new employment, all employees face the risk of being a “new kid on the block.” That is, ?there is always the chance that you just won’t “fit in” with the “in crowd.” That is just a fact of life.

Executives and managers who are viewed to be potential or even likely successors to higher-placed persons are advised to beware of what I call “Likely Successor Risk.”

“Likely Successor Risk” is the risk that others, who themselves seek promotion may see you more as a rival, than a colleague. They may be less than enthusiastic, disruptive, or even sabotaging to your efforts, plans and strategies. It is just a fact of life.

In extreme cases, others – and their friends – might just decide to make life miserable for you in a passive, or even aggressive, way.

You can’t change human nature, but you can and should bear “Likely Successor Risk” in mind when you negotiate basic elements of your potential new employment. As “Likely Successor Risk” elevates all other risks, wherever you see possible risk, seek degrees of “risk limitation.”

• So, if you are given a formula for incentive compensation based on specified metrics, bear in mind that you may be swimming “against the tide,” and so seek more reasonable metrics, or a minimum guarantee, at least during the first year or two.

• So, if you are promised compensation or equity that vests over years, request accelerated vesting if you are terminated without cause, or if you are denied the promotion you were led to expect.

• So, if you are granted severance if terminated without cause, ask, too, for that same severance if you resign for a “good reason“ such as diminished responsibility, relocation to a different city, or had your compensation lowered.

• So, consider asking for a robust severance package if you are later denied the promotion that attracted you to take the job in the first place.

There is risk in every employment relation. “Likely Successor Risk,” however, adds to the level and intensity of every risk to your achievements, your compensation, your job security, and even your industry reputation.

Job offers often dangle substantial rewards. It is always important to focus, perhaps more so, on risks. That is doubly so if you are being brought in to be a likely or potential successor to your manager or other position. Simply put, others may have “different plans” which will likely affect you.

Caution: There may be Danger Ahead.

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discharge” or other workplace issues, just [click here.]

© 2017 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited

 
“The paranoid person is never entirely mistaken.”

– Sigmund Freud

ACTUAL CASE HISTORIES: Quite frankly, there are so many actual case histories of “New Manager Risk” that I could write an entire book on the subject. A large part of my law practice over these past 35 years has been devoted to severance, and I have identified five or six situations where we can almost expect our client to lose his or her job. Putting aside for the moment the “large-scale downsizing” category, the “New Manager” category is one of the most common “one-off,” or individual, job loss situations.

I often describe “New Manager Risk” this way: (1) new captain takes over the ship, (2) new captain is eager to show how much improvement she can bring about, (3) he thinks his best path to improvement is the hiring of a “new crew,” (4) she thinks that people she has known from other teams she has worked with will be very loyal, as well, and (5) one by one, the “old crew” are convinced, coaxed or coerced to “walk the plank.”

Sound familiar? I’d be surprised if it didn’t.

While I am confident everyone has seen or experienced this very scenario, I am absolutely certain that everyone will, sooner or later, come across it, themselves. Hopefully, when it happens, it will not happen to you.

LESSON TO LEARN: The lesson to learn here is quite simple: if you are assigned to a new manager, or a new manager is assigned to you, you need to be at least a touch extra vigilant, and consider taking extra steps to do all you can to keep your job. So, the first step is enhanced vigilance, the subject of this newsletter.

***Note that in coming weeks, we will write another newsletter about steps you can take to counteract “New Manager Risk” in order to keep your job. It will be entitled “New Manager? – Addressing the New Risks.” In the meantime, consider what events and circumstances you should look out for, as explained below.

WHAT YOU CAN DO: Here are eight things you can be on the lookout for if either you are assigned to a new manager, or a new manager is assigned to you:
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