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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.

Key Man / Key Woman Clause – How to Protect Your Key Business Relations

Published on August 14th, 2018 by Alan L. Sklover

 
“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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Military? – Special Civilian Job Rights are Yours

Published on January 31st, 2017 by Alan L. Sklover

 
“ 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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“Required Notice” Provision – A Suggested “Win – Win” for All

Published on July 12th, 2016 by Alan L. Sklover

“When you come to a fork in the road, take it.”

– Yogi Berra

ACTUAL CASE HISTORY: Ailyn, 58, was the Chief Technology Officer of a mid-sized telecommunications company in the Southwestern U.S. She had been hired four years earlier, and given something that many people seek: an employment contract with a term of four years.

For her three and a half years with the company she enjoyed the calm and confidence that only job security brings: no job loss unless she committed some kind of “cause” for termination, such as theft, conflict of interest, or harassment, which of course she knew she would not do. She also had the confidence of someone whose annual performance appraisals each year were “exceeds expectation.”

With her contract coming up for renewal, she spoke with her manager, the company’s Chief Operating Officer, who assured her that he would be her advocate, and that she had nothing to be concerned about. Being pleased with her job, compensation and role, and not having any “dark clouds on the horizon,” Ailyn waited for news of her contract extension. And waited. And waited.

With her contract set to expire in just three weeks, Ailyn pressed the COO for an explanation for the delay. His explanation was simple: it was “held up” somewhere in General Counsel’s office, due to some kind of new regulation that had to be ironed out.

Two weeks later, she got the true story: a new Chief Technology Officer had been recruited for his internet marketing experience, and had been hired to replace her. Apparently her employer was negotiating the new CTO’s contract, and things had taken longer than they had expected. She was then given notice of just one week that her employment contract was not going to be renewed.

This was not the way she had expected things to go. She wondered to herself, “Where did I go wrong?”

LESSON TO LEARN: (A brief note: While “contract renewal” (which means “a new contract, beginning the relation again, on all the same terms”) and “contract extension” (which means “adding a number of months or years to the duration of the existing contract”) are technically different, for the purposes of this newsletter, we are using them interchangeably. We also refer to “agreements” and “contracts” interchangeably in this article.)

Employment agreements or contracts usually set down a certain period of time for which both parties agree to remain in the relation, commonly called the “Term.” For this reason, having an employment agreement or contract in place is seen as a source of valuable job security, for the employee, and valuable employee retention, for the employer, at least for that specified period of time.

However, toward the end of the contract term, for both employer and employee, “navigating” the issue of contract extension or renewal can be fraught with risk and anxiety. On the one hand, if you are interested in remaining with your present employer, you don’t want to seem “pushy” or mistrustful, and so may be inclined to be patient by waiting for your employer to make up its mind as to continuing the relation, or providing you with a written extension document. On the other hand, being patient might leave you with little time to find a new position elsewhere if your contract extension or renewal does not come to be. The employer who wants to keep the employee may be in an equivalent position of risk and anxiety.

It is for this reason that we encourage all clients who have an employment agreement, or who seek an employment agreement, to request that a “Renewal Notice” provision be inserted in it.

A “Renewal Notice” is just what it sounds like: (i) a written notice, (ii) to be provided by both employer and employee, (iii) at least six or so months before a contract expiration, requiring that each give notice of his, her or its intension regarding contract renewal or extension. Secondarily, a Renewal Notice should also provide for the commencement of discussions of the terms of renewal or extension to commence promptly, if both sides want to renew or extend.

Having a Renewal Notice provision in a contract (a) substantially lowers the chance that either employer or employee will be left “in the lurch,” that is, at risk for an unexpected end of the relation, and (b) provides both sides with a pre-arranged framework in which to openly and amicably examine – and navigate – contract extension.

The “Renewal Notice” provision in an employment agreement sets up a “win-win” dynamic in the employment relation. Why not ask for one, whether you are seeking an employment agreement, negotiating an employment agreement, or have one already, and considering improving it.

If you are going to have an employment agreement, it might as well be a good one.

WHAT YOU CAN DO: Consider the wisdom or requesting a “Renewal Notice” provision in any employment agreement or contract you have, or want to have, with your employer, with these things in mind:
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Job Security Secret: Be a Wise Cost Cutter

Published on May 11th, 2016 by Alan L. Sklover

Secrets of Job Security

Secret of Job Security #14:

Here’s a simple way to enhance your job security: Become known as a “Wise Cost-Cutter,” and you will likely be viewed as a “keeper,” that is, “someone to keep around.”

These days, more than any I remember, managements of every company and organization are intensely aware of the old adage “A penny saved is a penny earned.”

Put into management “lingo,” even if you can’t improve your top line growth, you nevertheless can improve your ultimate bottom line through what these days we commonly refer to as “cost efficiencies.”

One of my clients recently shared with me a lesson she learned accidentally that I’d like to share with you. While waiting in an airport lounge, she overheard someone sitting nearby talking about saving a lot of money by sending FedEx and UPS packages by “two-day delivery” service instead of “overnight delivery,” for two reasons. First, most overnight deliveries don’t really, truly, absolutely have to be there the next day. Second, in most metropolitan areas, packages sent by “two-day delivery” are, in fact, usually delivered the next morning.

When she mentioned that to her manager, he suggested they give it a try for a month, and calculate the resultant cost savings, if any. The small experiment yielded a very significant cost savings. Her manager then reported the cost savings “up the chain of authority,” which, in turn, made him appear in a most positive light. It sure didn’t hurt my client’s relation with her manager, but rather made her in his eyes as a “true keeper,” the best definition there is of a person with enhanced job security.

This particular cost-savings idea was the best kind, as it (a) did not inconvenience anyone, (b) did not pose a challenge to anyone’s self-interest, and (c) did not invite any kind of office-politics, intrigue or competition. It was simple, cost-efficient, and a win-win-win, except of course for the local FedEx and UPS offices. A casual mention of a wise cost-savings idea turned into a net positive for my client’s perception of value to her manager, and to his managers, and so increased job security for her.

Over time, she became known as someone who keeps an eye on costs, yet avoids battles that some cost-saving measures might entail. For her, it became sort of a fun game, not a constant preoccupation, but something akin to solving a complex crossword puzzle.

What is job security? It is a realistic degree of confidence that, if and when jobs are being reduced or eliminated, your job will be a degree safer than your colleagues’ jobs. Thus, if and when you depart your job, it will more likely to be on timing, terms and tone that are in your financial and career interests, and not against them.

Consider the wisdom, effectiveness and fun of identifying, assessing and suggesting a simple cost-saving measure every now and then. Enhanced job security is almost always sure to follow.

 
© 2016 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited


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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