After Resigning Archives

Garden Leave . . . Is Negotiable

Published on February 27th, 2018 by Alan L. Sklover

 
“Logic will get you from A to B.
Imagination will take you everywhere.”

– Albert Einstein

ACTUAL CASE HISTORIES: A “Garden Leave” obligation is a promise that you will remain on your job, after resigning, for 30, 60, 90 or more days prior to departing during which (a) you may be required to work in the office, (b) you may be told to remain at home “tending your garden,” (c) in either case, while you are subject to termination at any time, at the discretion of employer.

For perhaps 20 years I have seen “Garden Leave” provisions in offer letters, employment contracts, bonus agreements, retention agreements, and almost every other kind of workplace agreement. Many clients chafe at these restrictions, as they both delay their moving on to hopefully “greener pastures,” and frustrate the wishes and plans of their would-be next employers.

A few years ago I began to suggest to clients facing Garden Leave restrictions that they attempt to negotiate to reduce the duration of their Garden Leave’s restriction. Increasingly, clients who try to do so are meeting with success. All the time? No. But with increasing frequency? Yes.

I now suggest to every client who is planning to resign from a job, but facing a long Garden Leave restriction, that they attempt to reduce their Garden Leave period through negotiation. Why not? There’s little to lose and so much to gain.

LESSON TO LEARN: With few exceptions, everything in life – and that includes work life – is negotiable. And by negotiation, I mean motivating your manager or employer to view what your seek to be in their interests as well as your own.

The same first principle that governs any negotiation – that a person will likely pursue what that person perceives to be in his or her best interests – governs this negotiation, as well. If you can change the way a person perceives her or his own interests, then you can motivate her or him to do just what you want them to do. Some people say, “Oh, gee, that’s just Sales 101 . . . that is, if you buy a certain toothpaste, you will have a better social life. ” Well, what applies to toothpaste applies to Garden Leave provisions, too.

And there’s no downside to making any request, so long as you present it with “The Three R’s”: (1) Be Respectful. (2) Be Reasonable, and most importantly, (3) accompany your request with a compelling Rationale.

As I have many times said, “You can lead a horse to water, but you cannot make it drink . . . but if you put the right “salt” into its mouth, it will feel thirsty, and, on its own, it will look for a stream.” In the Garden Leave context, all you have to do is decide who is the right “horse,” and what is the right “salt.”

WHAT YOU CAN DO: When planning to resign, if you are subject to a Garden Leave obligation, you should consider requesting that its length be reduced. Here are some thoughts that might help you do so:
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Any ways to get satisfaction after resigning?

Published on November 29th, 2016 by Alan L. Sklover

Question: Four months ago, I involuntarily resigned from my former job because I was about to be terminated after a dishonest Performance Review. I felt that my manager and HR both schemed, by all of a sudden lowering my performance review, in order to lower the number of employees, without paying any severance. I even lost my quarterly commissions. It was literally making me sick, but I decided that resigning was safer and more principled thing to do. Since then, I have gotten a new job, but it pays $20,000 a year less.

What happened to me still bothers me. It wasn’t right, I saw no other way out, and I have the feeling, deep inside, that they “got away with it.” Is there anything I can do to get at least some kind of satisfaction?

Terri
Lansing, Michigan

Answer: Dear Terri: This is not the first time I’ve received almost this exact question. No doubt a lot of people have felt the way you feel. There are several possible paths to “satisfaction,” depending on what “satisfaction” means to you. Here are my thoughts:
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“Can an employee rescind a resignation?”

Published on August 1st, 2014 by Alan L Sklover

Question: I have resigned my position to move to another state. A few days ago, I found out that I have cancer. My current employer’s health benefits are much better than the health benefits offered by the employer who has hired me where I am moving to.

Can I rescind my resignation to maintain the better health benefits and use my accrued sick time while working as much as I can through the treatment. I would still plan on eventually moving because my husband has already moved.

Dolores K.
Kokomo, Indiana 

Answer: Dear Dolores: I am so very sorry to hear of your illness. You’re surely in a difficult spot, on several grounds. While it is often difficult to rescind a resignation, many of my clients have done so successfully. As you will see from my explanation, success in doing so requires a degree of “negotiation” using the facts and circumstances of your own work life and personal life. Let me try to best explain your options:

1. Whether you can rescind a resignation depends, first, on whether you have any kind of contract or agreement with your employer. A contract (or agreement, which are the same thing) represents the agreed-upon rules of a relation. If you have any kind of employment contract – such as an employment agreement, a union contract, a Civil Service position bound by Civil Service rules, or even a binding Employee Handbook – you must first consider what each of those documents says, if anything, about (a) resignations in general, (b) when they are effective, and (c) when they can be withdrawn, if ever.

Most employees have no kind of employment contract, and so the “rules” of their employment relation are not as easy to determine. In those instances, the “rules” of the employment relation are only those “rules” that are written in our laws, either as passed by our legislatures or as interpreted by our Judges. (Examples of these are (i) minimum wages, (ii) required workers compensation insurance, and (iii) mandatory overtime for most people.)

But if you do, indeed, have one or more of these contracts in your employment relation, then the answer to your question may well lie in the terms and conditions set forth in that contract or those contracts.

Resignations can be tricky – and treacherous. To help you, we offer a 100-Point Master Pre-Resignation Checklist. All you need to know and remember. To obtain your copy, just [click here.] – Delivered by Email – Instantly!  

2. Second, assuming you have no employment contract, then whether you can rescind your notice of resignation is not really a legal question, but rather a question of what I call your employer’s (a) view of your “Perceived Value,” and (b) its degree of “Moral Concern.” If you and your employer do not have a contract, then you and your employer have what we call an “at will” employment relation, in which each side is free to end the employment relation at any time. Thus, your employer would be free to (a) permit you to rescind your resignation, if it wanted to, (b) hold you to your resignation, if that was their preferred path, or (c) any variation of the two, including permit you to stay for a longer, but limited, period of time. The two dynamics – (a) your Perceived Value and (b) their Moral Concern – are at the heart of so many of our decisions every single day when laws do not restrict our behaviors. 

You might wonder, “If my resignation was effective in a month, surely can’t I rescind it after only one week, before it is effective?” In a technical sense, yes, but if an employer knows you are leaning toward leaving, it also has the right to say, “Oh, your husband has relocated, and you might follow him . . . why don’t you just leave now.” So, though you might “technically,” “legally” have a point, it does not have practical significance. 

3. You can, though, affect your employer’s view of your “Perceived Value” to it, and in this way sway it to permit you to rescind your resignation. Your Perceived Value is another way of saying your employer’s perception of its “Self-Interest” in having you around. You can elevate that Perception of Value in many ways, as examples, (a) remind them of your strong reputation in their business sector or industry, (b) point out the amount of revenue you attract to the company, (c) emphasize that your staying put will keep intact important business relations, (d) remind them of important people in the company who you support in your work, or even (e) indicate that you are the only person (or one of the few people) who know the new software systems. These things all weigh heavily on an employer’s decision to permit resignation rescission. 

So, if in your own words and in your own way, you express, “If you permit me to rescind my resignation, then it will be good for you,” and you give good reasons why that is the case, you can increase the odds that your employer will permit you to rescind your resignation.  

4. You can also affect your employer’s degree of “Moral Concern” for you, and in this way sway it to permit you to rescind your resignation. Many people believe that employers are not moral beings, and that all they focus on is money and business. I don’t think that is true, because employers are people, too, and are as moral as employees. Hey, I’m an employer, myself!!! 

As at least somewhat moral human beings, employers do care about the plight of others, especially when the plight of others “strikes close to home.” Your diagnosis of cancer, and the struggle to defeat the cancer you face, is a circumstance that many, many people can surely relate to, yes, even employers. Just today I read a truly heart-warming story of one of our most voracious Wall Street firms honoring a high school student from the Midwest as its “Future CEO for the Day” as he is seriously stricken by cancer, and this was his Make a Wish dream. What a wonderful story! 

5. You have nothing to lose – and so much to gain – in respectfully requesting to be permitted to withdraw (or rescind) your notice of resignation, by using your Perceived Value and your employer’s Moral Concern. Life’s bigger decisions are easier to make when we have nothing to lose, and you have nothing to lose in making a respectful request to rescind your notice of resignation. 

In doing so, in writing, stress and emphasize your Value to the employer, in every way you can think. 

In doing so, in writing, offer a view of your plight, and why it is essential to you that you have the best medical help there is, how great a struggle you face, and how your ability to remain on your health care policy is crucial to your recovery. 

Make it personal, base it on value to them, and a matter of health for you, and make it soon, and you’ve got a chance of making it successfully. 

Dolores, I truly hope this is helpful to you, and that at a very minimum, you’ll give it a good try. Emphasize both Value and Morality, and keep it respectful. Address it to senior most management, or the Board of Directors. Keep in mind how much you have to gain by it being successful. I hope this adds to any sense that “You can do it, if only you try,” because that is my message to you. And, that’s what this blog is all about.

My Best and My Prayers to You,
Al Sklover 

P.S.: By the way, tired of all this reading? Rather just sit back, relax, watch and listen? Consider “Resigning – The 21 Necessary Precautions,” one of our Sklover Videos On Demand. See our Complete List. Just [click here]. 

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

© 2014, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

“After resigning, must I ‘close out’ a Performance Improvement Plan?”

Published on December 21st, 2012 by Alan L Sklover

Question: I tendered my resignation in October, and am serving three months resignation notice before I leave. I have received two Performance Improvement Plans (“PIP’s”) and it is obvious my boss will not let me pass through my second PIP before I leave. If I don’t complete it, it would leave a bad record, he says. 

My colleague, who was put on a PIP, resigned like I did, but left without even touching his PIP. I called him and he said he never heard of a boss asking to close a PIP. 

What am I supposed to do?

Balqis
Kuala Lumpur, Malaysia

Answer: Dear Balqis: Though I help many, many clients with concerns about Performance Improvement Plans, and many people write in to me with questions about PIP’s, I must admit that I have never heard of the problem you now seem to face. This suggests to me that there is probably something a bit “unique” about your boss, or the circumstances he or she faces. Here are my best thoughts:  

1. In my attempt to gain some understanding of your boss’s perspective, I consulted a veteran HR professional, whose thoughts were interesting. A long-term client and friend, who is a senior HR professional, said that she had never heard of an employee, who had submitted a resignation, being required to complete a PIP before leaving. 

Her thoughts were essentially my thoughts: if the employee is leaving anyway, why go to the trouble of having him or her complete a Performance Improvement Plan? Isn’t the whole idea behind the Performance Improvement Plan to help an employee improve future performance, or face departure? Aren’t both alternatives – improvement or departure – here made unnecessary, irrelevant and moot?  

2. My HR friend did add, though, that she thought it is possible that your boss is being evaluated, himself, in this instance. My HR friend suggested that it is quite possible that your boss, himself, is being evaluated for his ability to be a leader, a mentor, and a teacher. If he cannot get his employees to do a good job, or even to stay in the company, it is very possible he should not have his own job. Thus, he may be under pressure to show he can get you to successfully complete your own PIP. The pressure he is giving you – with no apparent reason – might just reflect that he is under some pressure, a requirement or a certain directive from his  supervisor to complete the assignments given to him, on time, without excuse, and those “assignments” just might include completion of your Performance Improvement Plan. 

3. You might consider asking your boss, in your own way and style, “If I am leaving in a few weeks, anyway, why do you wish that I ‘close out’ my Performance Improvement Plan?” I believe in the simple saying, “The more data, the better the decision.” And I believe, too, that there is no downside to making an inquiry, so long as it is made respectfully, if it is reasonable to make under the circumstances, and if there exists a good reason to ask it. As a precaution, you might consider submitting this question to your boss in an email, because it cannot be mischaracterized or unfairly described to others. 

4. I am not a person who generally believes “bad records” exist on employees that can hurt their futures. As to your boss telling you that, if you do not “close out” your Performance Improvement Plan, you will be leaving behind you a “bad record,” I really don’t believe that. Employers don’t spend their time worrying about the HR files of former employees, and in fact almost all employers these days simply answer employment inquiries with (a) confirmation that you were an employee, (b) your title or titles, and (c) your dates of employment. Very, very few employers give out information beyond that, for fear of being sued by former employees.

 Might your “unclosed” PIP make it difficult for you to obtain another job with this employer in the future? I guess so, but being placed on two PIP’s will probably make it hard enough for you to do so already. I rather doubt that an uncompleted PIP would make any difference. 

5. At the same time, if it is not too much effort, and if it is possible in the time left, you might consider taking time to complete the PIP. In your short note to me, you did not mention (a) whether it would be a hardship to complete your Performance Improvement Plan, or why you felt your boss would not permit you to complete it. If it would not be an undue hardship, you might consider, at the least, doing what you can do to complete the PIP before you leave, to your best ability, regardless of your boss’s possible interference.  

6. When faced with a difficult situation, always “default” to your values: (a) respect: caring about others’ points of view, (b) truth: not fearing to ask the right questions, (c) faith: not acting out of fear. The question you posed – “What am I supposed to do?” – suggested to me that you are rather confused by your circumstances. When faced with a difficult situation – what might be considered a blinding storm – I rely on my “trusted compass,” that is, my basic values. I consider which of my basic values come into play in a certain situation, and I then follow my values to my actions:  

(a) Here, consider what others’ perspectives might be, as we have done above, and take those perspectives into account.

(b) Don’t fear the truth; rather, pursue it vigorously, because the truth cannot be “outrun.”

(c) Don’t fear asking questions; fear not asking them, because the more information you have the wiser the choices you will make.

(d) Have faith in your own instincts and your innate goodness, and faith that your goodness will protect you. Don’t operate out of fears that others throw in your way, or implant in your mind and soul. Faith will always get you through the toughest times; on that you can surely depend.   

Balqis, you are in a circumstance that even very experienced professionals have a hard time understanding, and that fact suggests “something else may be going on.” In such times, the smartest course of action is to act in good faith, and rest on your faith, and faith will surely get you through the “storm.”  

Thanks for writing in from Kuala Lumpur. Hope you’ll tell others in Malaysia of the resources our SkloverWorkingWisdom™ blogsite offers. My best wishes for a smooth transition, and a new and more prosperous beginning.  

My best to you,
Al Sklover 

P.S. We now offer Model Letters entitled “Model Letter for Objecting to Illegal Discrimination – Age, Race, Gender or Disability,” that can be used to help people help themselves if they believe they have been affected by illegal discrimination. To obtain a copy of one of these useful model letters, just [click here.]

Help Yourself With
These Unique PERFORMANCE IMPROVEMENT PLAN (PIP) Materials

PIP 1: Model Response to Receiving a PIP
PIP 2: Model Second Response if Your First Response Does Not Work
PIP 3: 152- Point Step-by-Step Guide and Checklist for a PIP
PIP 4: 3 Memos Seeking Feedback of Clients, Customers, Colleagues for Use in PIP Pushback
PIP 5: Final Memo to Delay PIP Conclusion to Continue Job Search
PIP 6: After Successful PIP Pushback, Suggesting Positive Next Steps

[ Click Here ] and Go to Section "H"

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

© 2012 Alan L. Sklover, All Rights Reserved.

Does a conflict of interest continue after you have resigned?

Published on April 13th, 2012 by Alan Sklover

Question: Hi, Alan. I am Rena from Malaysia. I need your help on a question about a conflict of interest.

I previously held a high position in an organization. While working there, I noticed that one of the services provided by the organization was not provided well to customers. So, I established another organization under my husband’s and dad’s name. Some of the customers switched over to the new organization I established.

I have left my previous employer, and some of the customers who moved over to my new organization are still using my new organization’s services. My previous employer is upset, and is threatening me.

My question: Is the present situation a conflict of interest, and can my previous employer sue me for this? I am in a state of confusion. Please advise.

Reena
Ipoh, Perak, Malaysia

Answer: Dear Reena: Many people find the subject of “conflicts of interest” to be confusing. Though I am not licensed to practice law in Malaysia, I can do my best to explain basic concepts and offer you some relief from your confusion:

1. While employed, employees owe a duty of “loyalty” to their employers. A central part of the employment relation is the duty of an employee to be “loyal” to his or her employer. That “loyalty” is not absolute, but has some limit: after all, the employee is not a slave. But one part of that required “loyalty” is that an employee is not supposed to act in competition with his or her employer while employed. Working “for” an employer and, at the same time, working “against” the employer is the clearest “conflict of interest” I can imagine. After all “Which side are you on?” Imagine what you would think if you heard a soldier was fighting for his army, and at the same time he or she was fighting against his own army; sure would seem wrong, wouldn’t it?

2. However, the moment the employment relation ends, the now-former employee is free to compete with the now-former employer. The very moment that an employment relation ends – for whatever reason it may end – the employee becomes free to engage in direct competition with his or her employer, provided that the employee has not signed a non-compete agreement. For more information on non-compete agreements, simply [ click here ].

3. But, an employee who has violated a “duty of loyalty” can be sued for any (i) damages during employment, and (ii) damages that were experienced even after the employment. This is what gets most people confused.

Imagine if a person is driving a car and runs over another person on a bicycle, who suffers a broken leg. The bicyclist can sue the driver of the car for that broken leg. Imagine that, as a result, the bicyclist is out of work for 10 months and has lost income for that 10-month period. The driver is responsible for (a) his bad driving while on the road, and (b) the damages for the broken leg (on the day of the accident) and for the lost income (that occurred later.) In the same way, an employee is responsible for (a) his disloyalty that took place during employment, and (b) the employer’s lost income in the future, whenever it takes place.

4. It is for these reasons that addressing a conflict of interest at work – by getting permission while you are employed – is often the wisest course of action. Disclosure and consent is the way to get around the restrictions imposed by the employee’s loyalty duty. Employees who either (a) find themselves in a conflict of interest at work, or (b) would like to compete with their employer, usually in some “incidental” or “inconsequential” way, are often best served by addressing the situation with their employers, and gaining permission to engage in the conflicting activity. “Sunshine is the best disinfectant.”

If you are interested in obtaining a Model Letter entitled “Addressing a Conflict of Interest at Work,” simply [ click here ].

So, Reena, your competition with your employer could result in a lawsuit against you, and the damages in that lawsuit for years to come. I would suggest that you contact a local lawyer to assess the situation, and to be prepared in case you are, indeed, sued. Sorry I don’t have better news for you, but I believe it is the truth that you really want.

I hope this information is helpful. Thanks for writing in from Malaysia.

My Best,
Al Sklover

P.S.: Become part of a growing movement; help others while you help yourself! Become a SkloverWorkingWisdom™ Sales Affiliate – encourage others to take advantage of our Model Letters, Memos, Checklists and Agreements. Earn a substantial commission. Just [click here.]

© 2012 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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