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Did You Hear? It Seems More Employees are Quitting Their Jobs

Published on July 10th, 2018 by Alan L. Sklover

I quit

According to Government Statistics, More Employees are Quitting Their Jobs Than Have Done so for Decades

According to recently published reports, more and more employees are voluntarily quitting their jobs, with or without having a new job lined up first.

U.S. Dept. of Labor Statistics show that during April of this year, 3.4 million Americans quit their jobs, a 17-year high, twice the 1.7 million employees who were laid off during the same period last year. The trend, it seems, cuts across all industries.

The Labor Department credits the strong economy, and the historically low unemployment rate – just 3.8% during April – for employees having the confidence to ?engage in “job hopping.”

Oddly, this seeming confidence and job-hopping is not reflected in any broad-based increase in wages, which have remained sluggish for decades.

Nor do the published reports indicate how many of these departures may actually have been employees leaving their jobs under threat of termination, for health reasons, or due to such circumstances as bullying or unreasonable workloads.

Whether you are considering quitting your job to find “greener pastures” elsewhere, or under threat of some kind, it is important that you devote time and effort to doing it carefully. It can make all the difference.

For example, consider taking a few minutes to review our blog post entitled “Resigning – The 21 Necessary Precautions.” To do so, just [click here.]

You may also be interested in obtaining a copy of our Master Pre-Resignation 100-Point Checklist. To do so, just [click here.]

And, too, other Model Resignation Memos and Letters are available by [clicking here.]

It is often said that the hardest part of any relationship is ending it well. That goes for the employment relationship as much, if not more so, than any other.

To see a list of all of our Model Letters, Memos, Checklists and Agreements – that show you “What to Say and How to Say It” in hundreds of different workplace situations – just [click here].

If you would like to arrange a Telephone Consultation with Mr. Sklover, just [click here].

Whatever you do . . . why not do it well?

“You are not alone, at work, any more.”

© 2018 Alan L. Sklover All Rights Reserved and Strictly Enforced.

“Can I decline a job offer I already accepted without ‘burning bridges?‘”

Published on July 1st, 2015 by Alan L. Sklover

Question: Please, Alan, I want to know how to write a resignation letter to a new employer who made me a job offer. I accepted it, but before I started the new job, when I resigned, my present boss gave me the same package to stay.

I want to keep on good terms with this company that gave me a job offer, and get consideration if this employer has a new job opening in the future.

Kimaryo
Dar Es Salaam, Tanzania

Answer: Dear Kimaryo: I understand your predicament, in fact, I was once in your situation, myself several years ago, as a younger lawyer. And because I have been an employer for over 30 years, I have been on the “other side” also. While you cannot be certain that the employer whose offer you accepted, and are now declining, will consider you for other jobs in the future, you can do your best to achieve that result. Nothing is guaranteed, except that if you do your best, that is the best you can do.
Read the rest of this blog post »

“Thinking of Your Own Small Business? – Four Paths to Pursue”

Published on June 25th, 2014 by Alan L Sklover

“If you have the courage to begin,
you have the courage to succeed.”

– Unknown Author

ACTUAL “CASE HISTORIES”: In recent years, I have assisted numerous clients – many of whom either lost their positions due to seismic shifts in their industries or just decided “there has to be a better way” – establish their own businesses. In fact, that is precisely what I did when I decided, decades ago, that working for a large law firm was not my “cup of tea.” Instead, I struck out on my own, and have never looked back.

Opening your own business, whether on your own or with others, is not an easy task. Being an owner is surely quite different from being an employee. Being a business owner requires a dedication and a discipline that can try even the hardiest of souls.

One client I helped about seven years ago, Carrie, had fourteen years experience in assisting construction firms locate and acquire construction materials, from concrete to copper. She had to know various sources worldwide, their reliability, their quality, and the ever-changing price of goods, on a daily basis. She was literally “on call” 24 hours a day, leaving little time for her family and personal pursuits. One day Carrie decided “there just has to be a better way,” and decided to establish her own firm to consult for construction firms who, quite simply, needed to know what she knew in choosing sources of materials.

Carrie now has her own consulting firm, with four full-time employees, and a roster of large, blue-chip construction firms as clients. Although she says she sees the world quite differently than she did when she was an employee, Carrie says the same attributes that made her a good employee – focus on client needs, dedication to quality over quantity, and thinking “a few miles down the road” each and every day – have lead to her success as a business owner.

Business owners have to think a lot about, seemingly every waking moment. But continually assessing “direction” is among the most difficult. Just as it helps for an employee to have a sense of what he or she wants “at the end of the rainbow,” so too must a business owner have a sense of the business’s “ultimate path.”

I hear from Carrie every now and then when she has a question about negotiation, or seeks counsel about leaving behind the “employee mentality” and thinking, instead, “like an owner.” Over the course of my conversations with Carrie and the many other former clients who I have helped open their own business, it seems there are four general “paths” small businesses may pursue as they daily compete for success in the business world.

These four potential paths are not mutually exclusive – one does not permanently preclude the other – but each has its sense of direction, some fitting the owners better than others.

LESSON TO LEARN: If you are considering leaving “employee life” and striking out on your own, or have previously done so, give a bit of thought to these four small business “paths to pursue.” Have a clear sense of direction, and focus upon an ultimate goal, will help you deal effectively with changing circumstances, altered business conditions, and mayhem of the markets in your industry. It’s like having a “compass” during a never-ending “storm.” Read the rest of this blog post »

“Garden Leave’s Little Secret: It is Not Very Enforceable”

Published on May 16th, 2013 by Alan L Sklover

Here’s 18 Smart Steps to Guide You

“Complexity (at work) has opened a great divide between
those who have mastered its requirements and those who haven’t.” 

– Brink Lindsey, in his recent
  book, “Human Capitalism”

ACTUAL “CASE HISTORIES”: Carolyn contacted us when she was about to move from one employer to another. She sought our help going through her upcoming transition. Workplace transitions are our special area of experience and expertise. As we do for all of our clients, we asked Carolyn to send to our office all of her “workplace papers,” including offer letter, all agreements signed, employee handbook and benefit and equity plans and agreements, for review prior to our consultation. 

Our review of Carolyn’s written materials revealed one potential problem: a “Garden Leave” provision existed in her Stock Option Agreement. A “Garden Leave” provision says, in effect: 

“You must give at least 90 days written notice of resignation. During that 90-day period, we have the right to have you stay at home (and ‘tend your garden,’ so to speak) and have no contact with employees or customers. Of course, you cannot work elsewhere during that period. During that period we will pay your salary and provide benefits, but not accrued vacation, sick days or bonus. We have the right to shorten that period if we wish, and let you go sooner.” 

[Note that Garden Leave periods are commonly 30, 60, or 90 days, and sometimes even 120 or 180 days.]

Carolyn said that she was needed immediately by her next employer, and she was certain her next employer would not wait those 90 days for her to begin. From our point of view, having the freedom to work where and when you want to work is a valuable freedom, and should not be given up easily. We counseled Carolyn that, while she had signed an agreement, there was not very much her employer could do to her that should worry her all that much; if her next job was really important to her – and the right to take any next job in the future – she might decide to deliberately ignore the agreement, and then just deal with the “consequences” – if any. 

After discussing the matter with us and her next employer, Carolyn decided to make her move to her next employer, and to take the risks of doing so. As it turned out, they were not all that significant: (a) she had to forfeit about $22,000 worth of stock options, (b) she did incur some legal expense, and (c) she seemed to have “burned a bridge” that was, to her mind, not that valuable a bridge to begin with. Oh, yes: she had a few sleepless nights, too. 

In retrospect, Carolyn’s decision to ignore the Garden Leave agreement she had signed was a wise one. First, though she did receive a rather nasty letter from her employer’s General Counsel that threatened “legal action,” no such “legal action” ever took place. Second, though Carolyn did lose her unvested options, she was confident that the loss incurred would be more than made up by her anticipated increase in compensation from her future employer. Third, though the squabble with her employer did cause her to delay her start at her next employer by two weeks, that did not bother her next employer; Carolyn even enjoyed having some time off. 

Looking back, Carolyn shared our view that, with a few exceptions, Garden Leave is not very enforceable, and agreed that “The only thing you have to fear is fear itself.”

LESSON TO LEARN: In the past ten years or so, employers have begun to use a new technique to protect themselves when employees depart, called “Garden Leave.” First, it acts to deter employees from leaving at once because (a) it makes the next employer wait 30, 60, 90 or even 120 days for them to start, something many employers will not or cannot do, and (b) by keeping the employee bound to them – and out of communication with clients and colleagues – they make it very hard to take clients and colleagues with them. 

The idea behind Garden Leave is rather ingenious, some would say a bit evil, but in practical effect it is not iron-clad, that’s for sure. We have helped many of our clients navigate themselves around the difficulties imposed – or seemingly imposed – by Garden Leave provisions. 

Garden Leave provisions usually, but not always, provide that you will continue to receive salary and benefits, but not receive or accrue (a) vacation, (b) sick days, (c) bonus, (d) commissions, (e) equity vesting, or (f) other payments, benefits or perquisites.  

A Garden Leave agreement is a kind of contract. “So,” you might ask, “how can I just ignore it?” The answer is that, with a few exceptions, there is just nothing an employer can do to enforce it. Here’s the analysis: 

a. Sue for damages? What damages?” The law provides two basic ways to obtain a remedy for a “wrong” that was done. The first is what most people usually think of, and call a “lawsuit for damages.” That is, someone suing someone else for, say, $100,000. This is the first thing that most employers’ lawyers will threaten, almost always as mere “hot air.” 

It is quite rare for an employer to have actual financial damages that result from an employee’s departure. It is possible if, for example, the employee is an opera singer and the opera tickets have already been sold, or an investment banker whose absence is the direct cause of a deal not closing. But in the vast majority of employee departures, there are no direct causal damages. Without direct damages caused by the employee’s early departure, there is no legal basis for a lawsuit. 

Think of it this way: if your car ever-so-lightly bumped into your neighbor’s car’s bumper, and there was no dent or scratch caused by the light bump, and no passengers were injured, there is simply nothing to sue about or for. (That is why they are called “bumpers,” you know.) 

b. Injunction to be sought? To stop what? The second kind of remedy the law makes available to people who have been “wronged” is what lawyers call an “equitable” remedy, usually in the form of an “injunction” or sometimes called “injunctive relief.” This is not a lawsuit for money, but instead a lawsuit to ask a Judge to issue a Court Order demanding that someone stop doing something that is wrong. This is called an “injunction.”

If a labor union is striking in violation of law, a Court can Order the union – by issuing an injunction – to “stop the strike” and get back to work. Or, if a power plant is spewing forth toxic chemicals, a Court can Order the power plant to stop polluting the air, or even stop operating the power plant. But, if you are not working at your former employer, and not yet working for your new employer, what can the Court Order you to stop doing . . . watching TV? Playing golf? Spending time with your children? Hardly.

Sure, if you have transferred trade secrets or customer lists, or asked customers and colleagues to leave your former employer, those could be Ordered halted by a Court – maybe. But if you have not done those things, then there is nothing to “stop doing.” 

In case you are curious, a Court cannot issue a Court Order to force you to work. Ever since this country outlawed slavery, that is simply not an option. 

c. Threaten to sue your next employer? Possibly, but rarely more than a scare tactic. Your employer’s next attempt to “enforce” your Garden Leave agreement may well be by means of a threat – made to you and/or made to your next employer, if your present employer knows who that is – to sue your next employer for some vague offense, sometimes called “tortious interference.” This is almost always nothing but a baseless threat, without meaning or effect. While there is a kind of legal claim called “tortious interference,” it is not commonly accepted by Courts, and is even less commonly successful: 

First, there is nothing in the world wrong with an employer offering a job to an employed person; every employer does that at least once a week, if not daily; 

Second, almost every employee is what we call an “at will” employee, which employers are constantly reminding us means “Either the employer or the employee may end the employment relation at any time and for any legal reasons”;  

Third, even if your former employer claims the next employer knows of your Garden Leave agreement, just as noted above, it is almost always an agreement without any damages for breach;   

Fourth, if a lawsuit is begun by your former employer against your next employer, all the next employer has to do is simply end your employment relation to end any alleged “interference”; and 

Fifth, the truth is that, if anyone is “guilty” of tortious interference, by writing a letter threatening your future relation with a new employer it is more your former employer who is the one who should fear being sued, and not a future employer, who has every right to say to someone, “Would you like to work for us?”   

No one likes being threatened with a lawsuit, and no one likes being sued. It is the fear in the mind of your next employer that, if anything, can keep you out of work for the Garden Leave period, and thus must be addressed.

d. Make you forfeit past-earned monies? Yes, possibly. If you have deferred income, perhaps in the form of deferred bonuses, or unvested equity, such as unvested stock options, it is possible – though not necessarily the case – that the terms of your Garden Leave agreement or your bonus or equity “plan” provide that you will lose these monies if you (a) voluntarily resign, or (b) resign without honoring your Garden Leave agreement. 

This is a potential “cost” of leaving an employer, and should be looked into before considering a transition. It should be noted that, under some plans and agreements, you lose your deferred income and/or your unvested equity even if you are laid off, without cause. Check your plans; this may be important, or perhaps even inapplicable, to you. And, too, consider how much the loss is worth to you. 

Incidentally, there is a legal argument to be made that the employer, by establishing a forfeiture, has “set a price” on your ignoring your Garden Leave agreement, and thus cannot seek additional “damages” from you.  

e. Might they claim you were fired? Rare and overblown; One exception: Form U-5. Any time you leave a relation – be it friendship, dating, marriage or employment – you run the risk of your former “relation-mate” bad-mouthing you. In the employment context, this can take the form of your former employer giving you an undeserved bad reference. In this situation your former employer could claim that “This person was fired for bad conduct,” referring – dishonestly – to your not complying with your Garden Leave agreement.

With one major exception, experience shows that bad-mouthing by former employers is not as much a risk as most people fear it might be. One thing is for sure: you cannot stay in an unproductive or unhealthy relation based on the fear – which might not even be real – of your former “relation-mate” saying bad things about you. 

The one major exception is if you are a Registered Representative in the securities industry. In that case, when your employment terminates for any reason, your employer must, within 30 days of the termination, file a form called a Form U-5 explaining the reason(s) for your departure. It is not unheard of for a disgruntled employer to try to smear a former employee by filing a false, fraudulent and defamatory Form U-5. This possibility – however remote – is always to be taken into account and, as noted below, steps need to be taken to minimize the chances of this happening, and if it does, minimize the harm that might take place. 

WHAT YOU CAN DO: Garden Leave is certainly not something to fear, but rather something to navigate. However, as employment transitions go, it is a bit complicated, as it calls into play several different legal and negotiating concepts at the same time. 

Read the rest of this blog post »

Illegal Workplace Discrimination? Here’s How to Tell

Published on December 28th, 2012 by Alan Sklover

 

“Discrimination is a disease.” 
 
- Roger Staubach

ACTUAL “CASE HISTORIES”: For over 14 years, Janine enjoyed her work at a Seattle children’s museum as Curator of its antique toy collection. She was known internationally for her expertise in antique toys, and for her leadership in gaining respect for antique toys as a proper pursuit for museums. She was highly admired among museums, collectors and auction houses, alike. In fact, at 73 years of age, she was sort of the “Queen of Antique Toys” among museum professionals.

A new Museum Director was appointed and publicly mandated to “Bring in Fresh Air” to the museum. Shortly after the new Museum Director started, Janine made sure to introduce herself, and soon invited the new Museum Director to lunch. Though the new Museum Director never responded to Janine’s invitation, Janine simply dismissed the lack of response to the new Director’s undoubtedly busy schedule.

When Janine was not invited to the first Staff Meeting with the new Museum Director, she thought it odd. When one-third of Janine’s staff members were reassigned to another department, she had an uneasy feeling in her stomach. When Janine was the only employee asked to take a salary reduction, she became quite alarmed.

After almost a year of missed invitations, public humiliations, and then staff and salary reductions, Janine started losing sleep, losing her appetite and almost dreading getting out of bed each morning. On the advice of a friend, Janine called our firm for a telephone consultation. “What could it be?” “What does this portend?” and “How should I respond?” were just a few of Janine’s urgent questions.

When clients call our firm for a consultation, we spend at least one half of our time during the  consultation asking questions. That is because, though we know the law, we don’t know the facts, and often we don’t know the client very well, either. Good advice cannot be given without comprehensive knowledge of both the facts and the person. It is analogous to a physician: while he or she may know a medical specialty quite comprehensively, that does not mean much without his or her being familiar with the patient’s blood tests, x-rays, family history, etc., and the patient as a person, as well.

We learned that Janine had not engaged in any kind of misconduct. We also learned that her performance reviews for the past 14 years had all “exceeded expectations.” She could not think of any valid reason for the way she was being treated until, that is, we started asking her questions.

Though not directly, our questions examined what possible motivations could the new Museum Director have to treat Janine like a third-class citizen, if not worse. Some of those motivations might not be nice, but that does not mean they are necessarily illegal, such as (a) a purely personal dislike, (b) concern that the employee is paid too much, or (c) a desire to hire a friend instead. All of those are legally valid – though some might say quite unfair – reasons to terminate a person’s employment. We asked Janine a whole list of questions. Some of them included the following:

–“Did the new Museum Director ever use words and phrases like ‘old timers,’ ‘antiques,’ ‘dinosaurs,’ ‘older generation’ or similarly dismissive words and phrases when describing older people?”  Her answer was “Yes.”

–“Did the new Museum Director seem to have less patience with older employees, or judge older employees more harshly than she did younger employees?” Her answer was “Yes.”

–“Did the new Museum Director ever ask you, or other older employees ‘So, when are you going to retire?’” Her answer was “Yes.”

–“Did the new Museum Director use words and phrases like ‘fresh faces,’ ‘new blood,’ and ‘new ideas’ to describe people she wanted to hire or promote?” Her answer was “Yes.”

–“Did the new Director seem to be more comfortable in the presence of younger employees versus older employees? Her answer was “Yes.”

Other questions, and other answers, soon followed, many of which indicated to us that what was happening to Janine may well have been derived from illegal age discrimination.

(You may note that we did not ask Janine the age of the new Museum Director, because anyone can discriminate against anyone, regardless of their own age, gender, race, etc.)

Initially, Janine was skeptical, in large part because she did not consider herself “old.” Her thought was “If I don’t consider myself ‘old,’ then how could other people?” Over time, though, Janine admitted that age discrimination did, in fact, seem like the most obvious explanation for her new difficulties.

Janine expressed surprise that, in just 45 minutes or so, we were able to come to a “tentative diagnosis” of her problem at work. It is not that we are clairvoyant, or really good guessers. It is just a matter of our knowledge of the law, our experience in these situations, and our reflections on how people and organizations often think and act.

In this case we did seem to be correct, as within 18 months of the Director’s arrival, 85% of the museum’s workforce aged over 45 years of age was, for one reason or another, no longer working there. Almost overnight, the average age of the museum’s employees dropped from 49 to 34, a rather stark difference.

LESSON TO LEARN:  Like it or not, we all discriminate in certain ways, most of which are entirely legal. It is legal to decide to eat only Russian food. It is legal to decide to use only Hindu lawyers. It is legal to decide to have friendships only with African Americans. But in employment matters, U.S. Federal law, and the law of all of the 50 United States, prohibit discrimination in decisions about, and the terms and conditions of, employment based on, among others, age, gender, race, religion, national origin, pregnancy, disability, and with increasing frequency sexual preference. Decisions about who to hire, who to promote, who to give raises or bonuses to, who to layoff, and who to fire, may not be made with these characteristics in mind.

So, how do you know if you have been a victim of illegal discrimination? For sure, you cannot look into a person’s brain and decide what he or she is thinking when they make an employment decision. In fact, people may be illegally discriminating without even being aware of it. There are, though, certain things that indicate whether or not an employer is making decisions in an illegally discriminatory manner.

You can never be sure if a motivation to hire, promote, compensate or fire was made on the basis of illegal discrimination. But there are effective ways to help you decide, and to reach a sound conclusion. They are the things lawyers, Judges and juries look for. Here are the most common.

WHAT YOU CAN DO:  If you feel that you are not being treated fairly at work, and wonder whether it might be due to illegal discrimination, ponder these 16 thoughts:

1. First, are you a member of what is called a “protected class?” Fair or not, it is entirely legal to “discriminate” against bald people, short people, people with dimples, lazy people, and people we don’t like, too. However, historically, we have seen more frequent and more damaging discrimination against people based on certain characteristics, and so we have made workplace discrimination against people based on those characteristics to be illegal. If one or more of these characteristics applies to you or your circumstances, then you can claim membership in what is called a “protected class.”

Though U.S. Federal, State and local laws differ somewhat as to who they consider to be in a “protected class,” these are the basic “characteristics” protected by most workplace-discrimination laws: anyone discriminated against based on (a) age: (over 40 for U.S. federal law); (b) gender; (c) race/color; (d) disability; (e) religion; (f) national origin; (g) pregnancy;  and, (h) in some states and cities, sexual preference and HIV status.

Being a person of “usual majority,” that is, male, Christian and Caucasian, does not necessarily mean that, regardless of the circumstances, you are not in a “protected class.” Recently, we dealt with a law firm that was comprised of 9 partners, 12 associates, four administrators, and six clerical staff – all women. If a qualified male applied for a job in that law firm and was denied the position given to a woman, the male job applicant would have a very good basis in both the law and common sense to claim illegal employment discrimination was the reason. Really, now: could 31 out of 31 employees in one company being the same gender be a coincidence? Highly, highly doubtful. You decide.

The law is clear: if you do not fit into the “protected classes” affected by the conduct in question, then the workplace discrimination law does not protect you. For example, if you are of Irish ancestry, and it is open and obvious that your employer refuses to hire people of Polish ancestry, you have no legal claim for discrimination.

2. Are you certain your employer is aware of your being in a “protected class?” There are some occasions in which your employer may not have known of your membership in a “protected class.” As examples, it may not be known that you are a Christian, Hispanic, pregnant, or over 40 years of age. On the other hand, it would be hard to imagine that your employer would not know that you were (a) female, (b) wheelchair-bound, or (c) nine months pregnant. If your “protected class” status is not known to your employer, then the law says that the workplace discrimination you believe you have suffered gives you no legal claim.

3. Have you been subject to words or actions of indignity, humiliation or disparagement related in some fashion to your being a member of a protected class? The first and foremost telltale sign of illegal discrimination is the use, or condoning of the use, of language or images in the workplace that are considered an indignity, humiliation, degradation or disparagement to a “protected class.” In one case we were involved with, the employer permitted very racially offensive signs to be placed in the workplace, and even did nothing for six months when a noose was displayed in a public area of the workplace, a very provocative – near incendiary – symbol of racial hatred and discrimination. .

4. Have you been denied a job, despite being qualified for it, which was given to a person not among your “protected class?” Not being hired for a job based on your membership in a “protected class” can be one of the most discouraging experiences of  illegal discrimination, because it is so hard to establish. If you are qualified, and especially if you learn that a person not in your “protected class” and less or not qualified was hired, it seems likely you have been illegally discriminated against at work. Another way to establish workplace discrimination in hiring is to determine the relative presence of your “protected class.” For example, it would at the very least be suspect if a company in New York City that employed 100 people did not have at least a reasonable percentage of women, racial minorities, all religions, disabled people, and employees over the age of 50 or even 60.

5. Have you been repeatedly passed over for promotion despite having the qualifications for the job? Quite often being passed over for promotions time and again leads an employee to ask, “What is getting in the way of my advancement?” Before raising the issue of discrimination, it may be wise to ask that question, in a respectful and non-accusatory email to your supervisor or Human Resources representative, to make sure there is nothing in your power to correct, improve or enhance, of which you were unaware.

6. Do you have reason to believe that members of your “protected class” are not compensated as well as others? Statistically speaking, it is a many-times proven fact that one “protected class” or another – as examples, women and certain racial minorities – are often paid less than their male and Caucasian colleagues. While this often seems to take place over time, and without intention, that does not diminish the fact or the effect of illegal discrimination.

7. Have you not been invited to meetings, events or gatherings that were in some fashion company-sponsored or company-related? Being excluded from work-related social events denies people the opportunity to informally build valuable career-enhancing relationships. While everyone is entitled to pick and choose among their friends and houseguests, denying colleagues invitations to golf outings, off-site conferences, and trade shows without good reason has been held to indicate illegal discrimination at work.

8. Have you noticed that members of your protected class are generally not among higher levels of authority where you work? When clients in the most commonly raised “protected classes” (women, racial minorities, and older people) come to us concerned about lack of advancement, one of the first things we do is review the employer’s website. You simply would not believe how obvious it can be, simply from the faces and names of the executives and managers shown on the company website that diversity is absent from the company’s top levels of management.

9. Are those in your “protected class” not made aware of potential promotion opportunities or paths to advancement? There is a very good reason the name of the U.S. federal agency that enforces workplace discrimination laws is called the “Equal Employment Opportunity Commission, or EEOC.” That is because “employment opportunity” is all the law provides; if that is guaranteed, then success is up to each individual’s initiative and perseverance. No one can be considered to enjoy “opportunity” for advancement if they are denied knowledge of job openings, training programs, or promotion possibilities.

10. Do those in your “protected class” seem to be given lesser resources to accomplish their workplace goals than are others? A long time ago, one group of people complained to their employer that they just could not make bricks without straw, and for this reason could not be responsible if the pyramids did not get built. Whether by design or otherwise, sometimes one group of people are given more resources – such as more staff, larger travel-and-entertainment allowances, or even more time to reach goals – than others. Of course, with greater resources at hand, it makes it that much more likely that the employees given greater resources will be more successful in “building the pyramids,” and then as a result receive better bonuses, promotions and the like. Disparate resources is a common form of disparate – and illegally discriminatory – treatment.

11. Does it seem to you that those of your “protected class” are evaluated more harshly than are others?  If you’ve got brothers and sisters, you’ve probably seen this dynamic play out at home: Mary is yelled at if she gets B’s on her report card, while Bobby is almost congratulated for his C’s. Huh? It’s a matter of different expectations, and expectations are often self-fulfilling prophecies. While there is no law forbidding expecting daughters to get better grades than sons do, there are strict laws forbidding harsher evaluations of, for example, women than men.

12. Are members of your “protected class” disciplined more strictly than others? Think about it: if you were in charge of a project, is it possible that you would give a good friend a second chance if he or she broke the rules, possibly more likely than you would give a second chance to a stranger? Of course that is more likely. Well, bear in mind that people often feel a bit closer with “those of their own kind,” and in this way discipline more harshly or with less forgiveness those who are “not of their own kind.” If based on others’ status as a member or a non-member of a “protected class,” then that is an illegal workplace discrimination.

13. Are words of exclusion, such as “you people,” “your kind,” “you folks,” “our people,” “our crowd,” and “those of us who . . .” used in regard to your “protected class?” I must admit it: at a recent dinner with a group of friends from a different country, whose culture is different from my own, and whose first language is not English, I used the term “you people,” and could see alienation reflected in the eyes of the person sitting next to me. Did I intend to separate “them” from “us”? No, but in my use of that term, I sure made them feel excluded, that’s for sure. Such phrases do exclude others from “our team,” and make them feel excluded. Have no doubt about that.

14. Have you been given false (or incredible) reasons when you have questioned any of the above circumstances? There’s an old saying in legal circles: “The best proof of the crime is the cover up.” Said a bit differently, if a person did not commit the bank robbery, why would that person lie about were they were on the day of the holdup? This common-sense lesson is not lost on those who work to investigate and resolve workplace discrimination disputes. It is for this reason that the law says that, “If a false reason is given for what has happened, then that fact, alone, constitutes proof of a discriminatory reason.” After all, if you didn’t do the “crime,” what would you attempt the “cover up?”

15. Is it likely that any unequal treatment you have experienced has a “valid business purpose?” The law does not guarantee equal treatment of all people because, to be frank, not all people deserve to be treated equally. For example, one person who works incredibly hard is more worthy of a bonus than another person who is very lazy. In this example, there is a good business purpose for paying the hard worker better than the lazy worker, whatever may be their gender, race, age, disability, religion, etc. So, if you (a) are a member of a “protected class,” and have been treated less favorably than a person not in your “protected class” BUT (b) there is a good business reason for that unequal treatment, no illegal discrimination has taken place.

It is for this reason that anyone who feels they have been treated unfairly at work, when compared to the treatment afforded others, must first consider the possible existence of a “valid business purpose.” Indeed, you can be quite confident that, if an employer is confronted with a claim of unequal or “disparate” treatment, it will allege the existence of valid business purpose for that difference. (As noted above, if the alleged “valid business purpose” offered by the employer for unequal or disparate treatment turns out to be untrue, that, in itself, is considered proof of a discriminatory motivation.)

Incidentally, there is no valid business purpose for (a) words or actions of indignity, or (b) words or actions of exclusion. None. Period.

16.  If the “decision maker” you are concerned about is the same person who made the decision to hire you, any claim for illegal workplace discrimination will probably fail. Imagine the following: Salvatore is 59 years old when he is hired by Addison. The next year, Addison fires Salvatore. Can Salvatore claim illegal age discrimination? No, because – as simple common sense would tell us – if Addison disliked Salvatore’s being 60 years of age, she surely would not have hired him when he was 59, either. This is referred to as the “same actor theory,” and generally defeats any claim of illegal discrimination at work.

After careful consideration of these 16 thoughts on illegal workplace discrimination, and sober consideration given to the possible risks and rewards of making a complaint or objection regarding discrimination at work, you may want to obtain one of our Model Memos for Filing a Claim of Discrimination on the basis of Age, Gender, Race or Disability, for your adaptation and use in doing so. If interested in obtaining a Model Letter that shows you “What to Say, and How to Say It™,” just [ click here. ]

These 16 thoughts about Illegal Workplace Discrimination should be of great help to you in considering what so many people ponder when not treated fairly or civilly at work: “Could this be illegal workplace discrimination?” As you might imagine, if two, three, four or five of the above indicators of illegal workplace discrimination are present in your circumstances, that makes your conclusion that illegal discrimination exists that much stronger. At the same time, it is essential that you consider those factors that would defeat a claim of discrimination, as well. No one factor is determinative; all must be considered together. It is by correct information and wise judgment that you can best protect yourself. Protecting yourself, by information and insight: that’s what  Sklover Working Wisdom™ is all about.

SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you, and know what to “watch out” for. Regarding “Might this be illegal workplace discrimination?”, these are the essentials you need to know. Now the rest is up to you.

Always be proactive.  Always be creative.  Always be persistent.  Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.

*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.

Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.

Sklover Working Wisdom™ and Sklover’s Negotiating for Yourself at Work™ are trademarked newsletter publications of Alan L. Sklover, of Sklover & Donath, LLC, a law firm dedicated to the counsel and representation of executives in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that our attorneys are admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, we retain the assistance of local counsel and/or obtain permission of local courts to appear.  Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Donath, LLC, 10 Rockefeller Plaza, New York, New York 10020 (212) 757-5000.

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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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