“ The cure for anger is delay.”

– Seneca

THREE BRIEF ACTUAL CASE HISTORIES: (1) Aquilino was a well known agricultural economist employed by an industry trade organization in Washington, D.C. His work visa was sponsored by his employer, and by the terms of his visa, if he was no longer employed by his employer, he and his family would have to return to their home country within ten (10) days. After a new Executive Director was hired who did not seem to be a “fan” of his, Aquilino had concerns that his position was insecure. Losing his job would entail Aquilino and his family having to depart the U.S. almost immediately. Aquilino and his family, however, wanted to remain in the Washington, D.C. area. Aquilino needed to find a new position before he might be laid off. He just needed some time.

(2) Margaret was a bond analyst for a large international bank. Over the years she had been awarded a significant amount of stock options. Each year, a large number of options vested. However, if she lost her position she would no longer be eligible for stock option vesting. In just six weeks, a very large number of stock options would vest. However, after receiving a poor review, she was concerned she might be let go before they vested. Margaret needed to remain employed for another six weeks. She just needed some time.

(3) Kevin and his wife had made all arrangements to adopt a child, which was scheduled to take place in about sixty days. At work, without warning, Kevin was placed on a Performance Improvement Plan (sometimes called a “PIP”), which contained a warning that, unless his performance improved “completely” in just 30 days, he could expect to be terminated. The problem was this: if he was no longer employed, the adoption process would come to an immediate halt. Kevin just needed to remain employed for 60 days, in order to complete the adoption process. He just needed some time.

Aquilino, Margaret and Kevin all managed to get the extended time on the job that each needed, and so all were able to navigate to get what they wanted, by making an honest application to each of their employers for a Family Medical Leave Act (“FMLA”) leave of absence. FMLA provides employees in companies with 50 or more employees up to 12 weeks of unpaid leave to attend to a medical or emotional difficulty, injury or illness, and the right to return to their position afterward. The law has widespread applicability, great flexibility, and very significant effectiveness – especially when you “just need some time.”

Aquilino had a teenage daughter with an eating disorder. Margaret had a mother who was in need of assisted living, but was living with Margaret while they sought a good home for her. Kevin’s wife was so nervous about losing out on the possibility of becoming an adoptive mother that she was having nightmares and difficulty eating. Aquilino, Margaret and Kevin each spoke to their family members’ therapists, doctors and health care providers, who in each case were willing to certify that each of their respective loved ones would benefit by having him or her spend more time with their loved one.

By extending his employment for 12 weeks, Aquilino got a new job, and his family was therefore able to remain in the Washington, D.C. area. By extending her employment, Margaret got the vesting of her stock options she sought. By extending his employment, Kevin and his wife got their dream come true: a baby son.

LESSON TO LEARN: You should not underestimate the utility of the FMLA leave of absence in your own work life or its potential to help you and achieve your own personal and workplace-related goals.

If you ever have a need to “e-x-t-e-n-d” your employment, and either you or a family member have a medical or emotional difficulty that would be helped by your having time off, please consider the many potential benefits of the FMLA law.

WHAT YOU CAN DO: If you need up to three months’ extension of employment, don’t hesitate to see if you might be entitled to a FMLA leave of absence. A few thoughts to help you if you do:
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Question: Hi. I’m trying to find out how to respond to management and colleagues who ask where I’ll be working once I tender my resignation. Any ideas?

Delia
Pawling, New York

Answer: Dear Delia, Your question is a common one, and one you are wise to ask, as well:
Read the rest of this blog post »

“The only person you are destined to become
is the person you decide to be.”

– Ralph Waldo Emerson

ACTUAL “CASE HISTORIES”: Okay, just imagine this: It is a Thursday afternoon in late January, and you get a call from a good friend. As she has mentioned to you, she has been working with an executive recruiter on a job search. She mentions to you that the recruiter called her today, and asked her if she knew anyone with just the type and level of experience that you have. The job opening is with a very young, growing and exciting firm, and he has just been handed an urgent assignment from them seeking someone just like you.

Sure enough, the employer that the recruiter mentioned is your absolute, number one, monster “dream employer.” Your friend says, excitedly, “This could be your lifetime break . . . it could be fantastic for you . . . can you send over your resume today? You freeze.

You have no idea where your resume is on your computer. You can’t remember when you last updated it. It makes no mention of anything you have done, learned, accomplished or joined for the past year or two, and there sure is a lot of new stuff to mention. Even if you find your resume, it is focused on a different type of job, working for a different type of employer, doing different work, than you have interest in now. And, too, the resume-writing service you used two years ago has closed its doors.

Right job. Right time. Wrong resume. Bad news.

LESSON TO LEARN: No matter who you are, what you do, and for whom you work, you just never, ever know when and how someone important – even your “dream employer” – is going to ask you to submit your resume. Chances are, like most other opportunities in life, it will knock on your door when you least expect it to, and when you are least prepared.

Since there is an annual rhythm to the hiring process, and there is a peak in that annual hiring season each year from mid-January to mid-April, the odds are that the scenario described above will, sooner or later, happen to you in that timeframe. Even if it does not happen in that timeframe, by re-thinking your resume at least once a year, you’ll be ready just in case it arises at any other time.

Because the peak hiring season takes place between mid-January to mid-April, the best time to begin “re-thinking” your resume each year is in the month of October, which gives you at least three months to (a) re-THINK your resume, (b) do, learn or join new things, and (c) re-DO your resume.

Re-thinking what your resume should include or exclude, project or suggest, takes more than an hour to do. It requires thought, review, analysis and creativity. It is a process that takes time and effort, and like anything else important in your life, it requires both care in planning and care in execution.

Start now, and when the proverbial knock comes on your door, you’ll be entirely ready to answer it. Many of my most successful clients do this each and every autumn.

WHAT YOU CAN DO: Here are ten thoughts and ideas to assist you in re-THINKING your resume, and then in re-DOING it, too, to maximize your chances of getting your “dream job” and working for your “dream employer.”  Read the rest of this blog post »

Question: I’ve been given an agreement to sign in order to get my future bonuses. This is what it says:

“In consideration of the above incentives, Employee agrees to provide 90 days notice if the Employee decides to leave the company. Should the Employee fail to provide 90 days notice, the Employee will have to pay back all quarterly bonuses for the past four calendar quarters.”

My fear is this: What new employer will wait three months for a new employee? Is this standard or legal?

Rachel A.
Philadelphia, Pennsylvania

Answer: Dear Rachel: Here are the simple answers, and some information to consider:

1. It is, indeed, legal for employers to require employees to agree to repayment conditions (such as this one) on bonus, commission or equity compensation. Employers are free to set conditions upon employees’ participation in bonus programs, equity programs, commission programs, and benefit programs.

This is the way the law looks at it: the employee is free to say, “No thanks, I’d rather not be required to give notice; I just won’t take a bonus, or equity, or commissions.” Going further, an employee can also say, and please excuse my vernacular, “Take this job and shove it.”

One limitation does exist, however: it must be prospective, not retroactive. That is, it can only affect monies earned in the future, not that have already been earned.

2. No, it is not “standard” to make employees agree to give back bonuses (or other compensation) if they do not give a lot of resignation notice, but it is becoming more common. Quite unfortunately, employers requiring employees to sign such agreements is getting more and more common every day. It seems to be a part of the worldwide trend toward employers trying harder and harder to control their employees, one of the ways they seek to gain the maximum possible benefit from them at the lowest possible cost.

By the way, in my experience only a handful of employees are successful in getting around such agreements. They are the few who are both (a) perceived as extremely valuable by their employers, AND (b) comfortable with negotiating for themselves, and so are able to say, in one way or another: “I won’t sign that agreement, and I want my bonuses anyway ”

This blogsite is devoted to making you one of those employees. We try in every way we can to help employees stand up to and counter that trend and – by gosh – we think it is working, slowly but surely.

3. (a) Long notice requirements (30, 60 or 90 days), and (b) repayment of monies if they are not complied with, both serve a number of employers’ interests. The reason we are seeing more and more of these very unfair, long pre-resignation requirements is that they work well for employers in a number of ways, all of them unfair, if you ask me:

(i) First, they make it virtually impossible for their employees to change jobs for the exact reason you mention: most other employers are not willing to wait 90 days for a new employee.

(ii) Second, they make it very “financially painful” for their employees to leave, because many do not have the money in their bank accounts to repay a year’s worth of bonuses, commissions, stock or benefits. This is getting a bit like what people used to call “indentured servants.” So, many employees simply “stay put.”

(iii) Third, it gives employers a chance to get employees who are leaving away from important clients, customers and accounts, and insert other employees into those valuable relations, so they do not lose customers or clients.

(iv) Fourth, if and when employees do leave without giving 90 days’ resignation notice, the employers can collect an awful lot of money back from them.

By the way, tired of all this reading? Rather just sit back, relax, watch and listen? Consider 12-minute Sklover-On-Demand Videos. See our Complete List. Just [click here.]

4. If a prospective employer really wants to hire you, you can always ask them to help you with this repayment problem you face. Prospective employers see a lot of these repayment problems, yet they still have a need for new, good, hard-working employees with positive attitudes. If that’s what you are, a prospective employer who sees your potential value might just be willing to (a) lend you the money you need to repay the bonuses you owe, (b) share the cost of repayment with you, or even (c) repay you the full cost of repaying the bonuses. That is, IF YOU ASK.

Many of our clients have asked for such assistance, and many – more than you might think – have been successful in doing so. It can be part of the negotiations of salary, bonus and benefits that comes around if and when both employer and employee both decide they want to “get married” to one another. In fact, it’s one of the most common reasons new employers pay “sign-on bonuses.”

5. And, too, after you leave you can always try to negotiate with your former employer to waive or forgive the repayment obligation. If and when you leave your job, you are free – and I strongly encourage you – to seek waiver or “forgiveness” of the obligation to repay the monies you owe. There are many, many good reasons you might suggest that it would (a) only be fair and (b) be in the employer’s interests to do so.

As for just a few examples – and there are many, MANY more – if you left your job because (i) you were being severely sexually harassed or threatened with workplace violence, (ii) you were being urged to be deceptive or dishonest to customers, or (iii) you were being denied promotions because of your age, race, gender, disability, religion, pregnancy, or other illegal reason, then it surely might be best for your employer not to start a Court fight with you, which it could lose.

If you agreed to repay your former employer (a) tuition reimbursement, (b) relocation expenses, (c) a sign-on bonus, or even (d) a short-term loan, you may be able to have that obligation waived and forgiven. We offer a Model Letter for Repayment Obligation Forgiveness – with 18 Great Reasons, just [click here.] “What to Say, and How to Say It.™” – Delivered by Email – Instantly! 

And, hey, if your former employer refuses to waive and forgive your repayment obligation, you just might send all of its other employees our website address and suggest they read this article!! You even have my permission to do so!!

Rachel, thanks for writing in, and for giving me an opportunity to address this issue. As I say time and time and time again, employees have more options available to them, and more leverage, than they tend to believe. The same holds true in this circumstance, as well. And, too, I hope it gives you a sense that (a) you are not alone in “this,” and (b) you have leverage and ways to “stand up” and “fight back.” That’s what this blog is all about.

My Best to You,
Al Sklover

P.S.: Post-employment, employers might use a Collection Agency to collect sums. To thwart those efforts we offer a Model Letter in response to Collection Agencies. Not guaranteed, but almost always works. Just [click here.] “What to Say, and How to Say It.™” – Delivered by Email – Instantly! 

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

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

Question: My employer recently lowered my commission plan without my consent, and now has threatened to also lower my salary by 16%. 

If I refuse to work for the lowered salary and commissions, can I collect Unemployment Benefits? Thank you for your help. 

Rob
Deer Park, New York 

Answer: Dear Rob: Many, many people worldwide are having their compensation cut, and so I am receiving many questions like yours. Unfortunately, as explained below, there is no simple, “black-and-white,” clear answer to your question, but let me give you my best explanation, from which you can make your best decision:       

1. Unemployment Benefits are provided to people who have either (a) lost their job without fault of their own, or (b) resigned with a truly good reason. As a general rule, Unemployment Benefits are reserved for people who lose their jobs due to no fault of their own, or who resign with a good-enough reason. They are not available for those who resign “without good reason.” So, we say to ourselves, “What is a good-enough reason to resign, and still collect Unemployment Benefits?”  

Well, surely you can collect unemployment benefits if you can show that, as examples, (a) your workplace is so dangerous that you truly feared possible loss of life or health if you remained; (b) you were frequently subjected to severe sexual harassment or physical abuse; (c) your job is still available to you, but requires you move your family 5,000 miles away, or to a different country; or (d) your compensation has been reduced from $50,000 a year to minimum wage per hour. These are extreme examples of “good reason”; the less severe changes – like yours – are less clear regarding whether they make you eligible to collect Unemployment Benefits.   

For great info and insight, consider viewing our 12-minute Sklover-On-Demand Video entitled “Unemployment Insurance Benefits – The 12 Basics You Need to Know.” To do so, just [click here.] 

2. In most states, a truly good reason is a “substantial violation or change in the terms of employment”; however, whether your situation qualifies as a “substantial violation” depends on your particular facts, events and circumstances. I often tell people that, in many instances, “In legal analysis, the facts are more important than the law, because quite often the facts determine which law applies and how it does so.” Your situation represents a pretty good example of that.  

Here are four actual case decisions made in the past by the Unemployment Benefits authorities in your State of New York:

a. Case Decision: Where an employer promised an employee an increase in salary commensurate with an employee’s newly-added responsibilities, but never paid it, and the employee resigned as a result, the employee was deemed eligible for Unemployment Benefits.

b. Case Decision: Where an employer promised a wage increase after promoting an employee to a more responsible position, but never paid it, and the employee resigned as a result, the employee was found to be eligible for Unemployment Benefits.

c. Case Decision: Where an employer promised a wage increase, but due to business conditions was unable to provide it, and the employee was already at the highest compensation for that position, and the compensation the employee was being paid was about the same being paid other such people in the industry, and the employee resigned, the employee was found not eligible for Unemployment Benefits.  

d. Case Decision: Where an employer promised to give a precise pay increase, and agreed with the employee on the precise date on which the pay increase was to begin, and failed to pay it, and the employee resigned as a result, the employee was found to be eligible for Unemployment Benefits.    

There are two “lessons” to be drawn from the case decisions noted above: (i) First, every different fact can make a big difference in the way a case is decided; and (ii) Second, Judges are people, too, and each Judge sees things a little differently than other Judges might see them. 

3. If your salary was lowered 16%, and your commissions were lowered, say, 20%, based only on those facts I would view your chances of being found eligible to be on the low side. It is simply impossible to predict with certainty whether or not you would be found eligible for Unemployment  Benefits.  

However, (a) if business at your employer was slow, and/or (b) you were not given any guarantee of compensation remaining the same, and/or (c) you were not given any new responsibilities, and/or (d) you are being paid commensurate with others in your company and your industry, then you would have a good chance of being denied Unemployment Benefits. 

On the other hand, (a) if you were given assurances of stable income and/or (b) you were given new responsibilities, and/or (c) you are being underpaid compared to others in your company and your industry, those factors would surely be in your favor. 

4. “Fairness” and “sympathy” can also play a significant role in these decisions.  In my experience I have seen other facts – which seem unrelated – play a big role in the decision of the Unemployment Hearing Judge or Administrative Law Judge who makes the ultimate decision. These include (a) if you are the sole financial provider for your family, (b) if your compensation reduction made you unable to provide for the welfare of children, (c) if you seem to be respectful and honest, or, on the other hand, (d) if you seem disrespectful, lazy and simply disinterested in working. As I noted above, it is important to remember that Judges are people, too. 

5.There is one alternative available to you that you may not have thought of: Consider requesting that your employer not contest your application for Unemployment Benefits.  There are many times and circumstances in which, for any number of reasons, it is just best for the employee to leave the job. In fact, it is just possible that this is really what your employer is seeking.  

For this reason, you might consider requesting, in writing, that your employer not contest your unemployment application if and when you leave. In order for an employer to reduce overall employee headcount, and not pay severance, this is sometimes seen as a WIN-WIN solution. Of course, you must be careful to be clear that this, in itself, is not a resignation.  

Want to apply for Unemployment Benefits, but afraid your former employer may oppose your Unemployment Benefits applications? Use our “Model Letter Requesting Employer’s Assurance Not to Contest Your Unemployment Application” with Ten Great Reasons. “What to Say, How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!

 Rob, what you face is being faced by so many other people these days. While I can’t answer your question with precision, I hope this information helps you make your own decision regarding what to do. Please consider telling your friends, family and colleagues about our blog – we’d REALLY appreciate that!! Oh, yes, and tell them, too, that subscribing to our blog is free, fun and helpful. 

My Best,
Al Sklover

P.S.: Applying for Unemployment Benefits can be confusing! Eliminate the confusion, and make sure you don’t forget anything – use our 132-Point Guide & Checklist for Unemployment Benefits. To get your copy, just [click here.] Delivered by Email – Instantly!  

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

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