“Create with the heart; build with the mind.”

– Criss Jami

ACTUAL CASE HISTORIES: Adelisa, 38, had a rock-solid resume as an Analytics Design Specialist, having been employed by a list of impressive hedge fund employers. She was an expert in assisting Quantitative Analysts design software and algorithms to better predict investment performance. Her experience, skills and industry relations were such that she received recruitment inquiries almost weekly. For a few years, she was on her own as an independent contractor, but was now a mother of two young girls, and had become far more interested in the comfort afforded by a weekly paycheck.

One inquiry she received from a large hedge fund intrigued her so much that she entered into serious talks with them for a senior executive position that included very substantial compensation, great working flexibility and significant job security.

I had worked with Adelisa several times before, each time she climbed the “career ladder.” When she contacted me this time, she had already received a “standard” employment contract from her potential employer. I noticed right away that it was heavily laden with many detailed provisions intended to protect the employer from employees “stealing” creations, inventions, proprietary information and trade secrets. The entire employment agreement consisted of 8 pages, 4 of which were devoted to the subject of protecting the employer’s intellectual property.

Adelisa had the “mirror image” concern. That is, over the course of several years, on her own time she had developed what she referred to as her “Golden Goose,” which was a computer program she had created entirely by herself, years ago, while working as an independent contractor. As best I can explain it (they didn’t teach this stuff in law school), it was “an algorithmic-based platform that could ‘carry’ various data packages to test predictive capacities.” Adelisa said it was actually based on “digital intuition,” and was a type of artificial intelligence.

Her “mirror image” concern was how she could use her “Golden Goose” on the job, yet not lose any of her rights in and to it. The draft employment agreement, like most, provided that anything and everything she might use to do her work for this employer would automatically be deemed the employer’s sole property. She asked if we could help her respond to that language, in order to protect her “Golden Goose.”

It was an interesting project, and the results were well worth it. First, her new job went very well, and her compensation was very significant. And, when, years later, she eventually departed from the company for “greener pastures,” there were no disputes, no claims, and no threats regarding her “Golden Goose,” which was precisely her goal. Mission accomplished.

LESSON TO LEARN: With few exceptions, everything in life – and that includes work life – can be “navigated and negotiated” in wise ways. Taking care, when entering into new work relations, to try to prevent problems from arising in the future, is the wisest of wise ways, and always worth the effort.

In two ways, employees often lose their rights in their pre-existing creations: (1) law (the “Work for Hire” rule), and (2) by agreements they are asked to sign (often called “Assignment Agreements). In this blog post, we address both, and the ways prospective employees can and should protect their “pre-existing creations” in the context of interviewing and job offers.

As a few examples, they include software, works of art, written materials, musical compositions, visual and audio presentations, and inventions. By law, they are materials that can be (a) copyrighted, (b) trademarked and/or (c) patented. By means of self-help – our favorite topic for employees – they can take steps that can protect themselves, and might be just as good, or better.

While each employee’s “pre-existing creations” are unique, and each employment dynamic is unique, there are some generalized observations we can share to assist in the process of protecting employees’ “pre-existing creations.”

As the quote above reminds us, “Create with the heart; build with the mind.” I would simply add, “And then protect what you create as best you can.”

WHAT YOU CAN DO: Here are 12 pointers for employees in Adelisa’s “shoes.” This list is not exhaustive, but it does cover most of the critical points most employees need to understand:
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“Whoever said winning isn’t everything
wasn’t fighting cancer.”

– Author Unknown

ACTUAL CASE HISTORY: Theresa, 48, an experienced Architectural Draftswoman, was seeking to return to the workforce after not working for four years. After hearing of a job opening at a large architectural firm for which she seemed perfectly suited, Theresa submitted her resume, and she was soon asked to come for an interview.

Theresa responded quickly, and after two interviews that went extremely well, she was told that the partner in charge of hiring for the job was her only remaining step. Unfortunately, that interview was unusual for its focus, from the first moment to the last, on her reasons for being out of the workforce for four years.

After several rather penetrating questions about the reasons for her being out of work for four years, Theresa felt she had no choice but to share what she did not want to share: that she had been battling ovarian cancer, and now, for the first time in years, felt strong enough to commit to full-time work. “Finally,” she thought to herself, “that’s out of the way. Maybe now we can talk about ‘what really matters,’ namely the position’s responsibilities and the corporate culture.”

Her interviewer apparently thought differently, and simply proceeded to ask her if she was certain she had the energy to do the job, what medicines and treatments continued, and – pointedly – what was her prognosis. As Theresa complied, with each additional question, she was less and less certain that she wanted to work for this firm.

Not surprisingly, Theresa did not get an offer for the job.

LESSON TO LEARN: Any person who is struggling with cancer, or who has done so in the past, knows what it means to fight for your life. Those who are fighting cancer surely have a lot on their “plate.” Those who are battling the disease, or who have done so in the past, AND who are seeking work, have more on their “plate” than most people can imagine. This newsletter is intended to lighten that burden by providing information about how the law provides some protections for them, and for those who care for them.

Disability Law, In General: The Americans with Disabilities Act (“ADA” for short), is the federal law that protects those with disabilities from discrimination in employment based on their disability. The ADA defines “disability” as (a) an impairment that substantially limits a major life activity, or (b) a record or history of having a substantially limiting impairment, or (c) being perceived by others as having a disability. The ADA covers employment by private employers with 15 or more employees, as well as state and local government employers (Section 501 of The Rehabilitation Act provides similar protections for federal employees).

The U.S. Equal Employment Opportunities Commission (“EEOC” for short) is the federal agency that enforces the provisions of the ADA. With certain different limitations, definitions, and procedures, most states, and even many cities, have their own laws, ordinances and agencies that provide additional protections to employees with disabilities, or who are perceived to have an impairment.

Cancer and Disability Law: The ADA was amended in 2008 to protect job applicants who are battling cancer, or who have done so in the past, from discrimination on that basis. Unique among diseases, cancer is now presumed to be a disability, giving cancer victims more protection from discrimination than are those who suffer from many other diseases.

Unfortunately, despite increasing understanding of the burdens of having cancer, people with cancer still experience barriers to equal job opportunities due to interviewers’, supervisors’ and colleagues’ misperceptions about their ability to work during and after cancer treatment. Even when the prognosis for recovery is excellent, some employers presume that a person diagnosed with cancer will be unable to perform their work duties, will take frequent and long absences from work, will be unable to focus on their duties, and may not survive very long.

Perception of Disability: Although many people don’t know it, you do not need to be disabled in order to be protected by the Disability Laws, which also protect job applicants who are “perceived to be disabled.” So, if for any reason a job interviewer “perceives” you to be disabled, then the prohibition against disability discrimination protects you, too.

Like Theresa in the Case History above, you may not have cancer or any other disability, but nonetheless your interviewer believes you may not be able to work occasional overtime, or if he or she believes you may call in sick a lot, and does not hire you for this reason, the law is on your side, regardless of the fact that, in fact, you have no disability.

[This newsletter is dedicated to the memories of Emil, 66, a friend of 55 years, and Krysten, 40, a close friend of several years, both of whom over the past year have fought the good fight against cancer, but who did not, in the end, prevail.]

EIGHT MOST FREQUENTLY ASKED QUESTIONS, AND THEIR ANSWERS:
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“They didn’t honor past deals? Don’t make new deals with them.”

Observe and Learn:

Why trust those you know are un-trustworthy?

I have seen this situation maybe 1,000 times: a client who is terribly disappointed by an employer who I know has disappointed other employees in the past.

Time and again, these employers make promises, and never seem to honor them. It could be regarding rewards (say, stock), advancement (for example, promotions), minimum compensation (allegedly “guaranteed” bonuses), or even such basics as their title, their role or their benefits. And even when the promise is in writing.

And there always seems to be one excuse or another.

If you are considering changing jobs, asking past (and maybe present) employees about the reliability of the employer’s promises is one of the smartest things you can do.

As Einstein said, “The definition of insanity is doing the same thing over and over again, and expecting different results.”

Don’t rely on promises from someone who in the past has not fulfilled his or her promises to others. That advice is straight from Einstein.

Observe and Learn.
Then Negotiate.

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

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“Go where you are celebrated, not tolerated.
If they can’t see the real value of you, it’s time for a new start.”

– Author Unknown

ACTUAL CASE HISTORIES: Marsha, a Payroll Supervisor at a Medical Laboratory, was recruited by a larger healthcare company for a position as Director of Compensation. The new position would be a 50% increase in compensation and offer benefits including a very generous retirement package. It was an opportunity she felt she just had to pursue.

To attend the interview, Marsha called in sick one morning at 9:00 am. At 10:00 am, she arrived for her interview and spent the entire morning meeting several people, all of who seemed quite interested in her, her experience and her skills. Afterward, she was invited to lunch, and that went even better. After lunch, she went home, elated.

The next morning, she received a meeting invitation for 3:00 pm from the Human Resources Director to discuss installation of a new payroll software program. The real meeting agenda, though, was quite different: Marsha was asked how she felt, and how she had felt yesterday – the day she called in sick. It turned out that two managers of her firm had also been at the restaurant where Marsha and her interviewers had lunch and had not noticed her to seem ill, in the least.

Long story short: Marsha was terminated for “payroll fraud,” that is, taking a paid day off for being ill when, in fact, she had not been ill. What happened to Marsha does not happen to many others, but what happened to her vividly illustrates is a risk most employees take when taking time off from their jobs – with pay – for a false reason. Being accused of “payroll fraud” is not at all good for a career as a Payroll Supervisor, or any other position, for that matter. Not at all.

LESSON TO LEARN: We have all “been there.” You are working for an employer, and either after submitting your resume, or at the request of a recruiter, you are asked to interview with a new employer. How do you get the time off to do so? There are innumerable reasons employees give for taking a morning, afternoon or even an entire day off to attend an interview. But are some “interview excuses” better than others? The answer is “yes.”

A poor “interview excuse” is one that represents a greater chance of risk or harm to your present employment relation. A better “interview excuse” is one that represents a lower chance of risk or doing harm to your present employment relation. It’s that simple.

In any workplace, you can get fired for dishonesty, as Marsha learned. She took money – salary – from her employer based on a falsehood – that she was too ill to work. While it is almost unheard of to be fired for interviewing with another employer, getting fired for dishonesty is not at all uncommon.

An additional and much more common risk is the loss of trust your manager may feel for you if she learns you have been dishonest, and are interviewing, and that she seeks to replace you before you are ready to leave.

WHAT YOU CAN DO: Most of our professional efforts are devoted to working with employees in transition, what we refer to as going “in,” “up,” or “out” of jobs. For those interviewing for new positions, we have given the best “interview excuse” issue a lot of thought, and have come up with five guidelines to help find your own best ones.

Here are five guidelines to a better excuse for taking the time off work to attend a job interview:
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“Ignoring an awkward truth does as much damage
as fabricating a comforting lie.”

– Author Unknown

ACTUAL CASE HISTORY: Phil, 58, had always worked in sales of autos, trucks and their parts. His last position was as a Regional Manager for a distributor of parts for light-duty trucks, responsible for sales to 14 dealerships in Pennsylvania, Ohio and Indiana. After his wife passed on, he took some time off, and then moved to Massachusetts to be closer to his children and grandchildren.

Phil was not ready to retire, but also didn’t look forward to returning to a job that might require either significant travel or the headaches of a management position. He decided to seek employment working in some aspect of autos, trucks, parts, or related services.

His efforts to secure a position were frustrating. No matter what the job was, Phil kept hearing five words, over and over again: “Sorry, but you are overqualified.” It made no sense to him, but at the same time he totally understood it.

On the one hand, common sense suggested to Phil that having more qualifications than a job required simply made a job candidate more than ready, willing and able to fulfill the job responsibilities, and thus more valuable. On the other hand, Phil totally understood people saying “Sorry, but you are overqualified” because he, himself, had uttered those five words many times when he did hiring. It’s just that Phil had never stopped to consider why even he said that to job candidates, and did not offer “overqualified” job candidates a first or second interview.

Phil considered applying only for jobs at his former level, but they were nearly non-existent due in large part to the introduction of web-based auto and truck parts distribution. Phil also considered “downsizing” his resume to make it appear that he was not as qualified as he was, but decided that deception was not his style, and it was not a good way to begin a positive working relation. And, too, he was concerned that he might get fired should it be discovered he had committed “resume fraud.”

It made Phil think long and hard about “Why would having more qualifications than needed for a job disqualify a person from getting that job?” The experience motivated Phil to And, too, instead of accepting his fate, it inspired Phil to ponder “What can I do to counteract the disqualifying effect of being perceived as overqualified?”

Phil called our office to request a telephone consultation. It turned out to be an unusual telephone consultation for me, because I learned so much about the “overqualified” experience in the course of speaking with Phil. Working together we devised a plan of action for Phil that ended up with him landing a job at an auto parts distributor that he has now enjoyed for over three years.

LESSON TO LEARN: These days, with many older workers wanting to continue work past “retirement age,” and with so many industries consolidating and shedding employees, the “overqualified” dilemma is becoming widespread. Overqualified” has become something of a “dirty word” to those who are seeking a new and “lower rung” position because it is so discouraging to hear.

Some “overqualified” job applicants end up “downsizing” their resumes, which sometimes helps, but can also be a risky thing to do, as the internet has made it quite easy for background checks to foil such attempts. And, also, after landing the job, to be terminated for such “resume fraud” can result in being terminated for “cause,” and thus leave a very negative mark on an otherwise fine resume, career and reputation.

A central part of wise workplace “navigation and negotiation” is to reflect on the concerns of your negotiating counterpart and address those concerns constructively. What would prompt a prospective employer not to hire a qualified candidate just because he or she has more than the necessary job requirements? Most people identify these five hiring manager concerns:

1. Concern there might be a “problem” in your personality, health, attitude, etc. “There’s just got to be something wrong . . .”

2. Concern you won’t stay very long: “Gee, I bet, if we hire her, she is sure to leave us as soon as she gets a job offer at the level she is used to.”

3. Concern you will be bored: “With what he has done in his previous positions, he is sure to find this position beneath him, mundane and boring.”

4. Concern you will not be satisfied with the compensation: “Since she used to make more than we are offering, I’d bet that she will be asking for a raise in just a few months.”

5. Concern you might make your colleagues or manager uncomfortable: “With what he’s done before, he’ll be sure to make others feel – or look – silly.”

These are the five primary concerns to address when viewed as “overqualified.” So, how do you address them? What seems to have worked for Phil, and what most career coaches and writers on the subject suggest, is to address these concerns “head on,” and constructively. It’s what most “overqualified” people don’t do, and so is often seen as a candid – and welcome – “breath of fresh air.”

WHAT YOU CAN DO: If you think prospective employers might see you as “overqualified,” or if your efforts to get interviews are repeatedly unsuccessful, chances are pretty darn good that that is how most, if not all, prospective employers see you. That is a problem. Ignoring a problem – especially the “elephant in the room” problem – is not often an effective strategy. Like most issues in life, addressing those concerns “head on” and in a constructive manner is most likely to get you the job you seek.

There’s no guarantee that this will work for you, but you are pretty much guaranteed that ignoring the problem will not make it go away. Here are the steps we suggest:
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