What am I Entitled To? Archives

“If I resign after 9 months of the year, how can I still get my yearly bonus?”

Published on September 20th, 2012 by Alan L Sklover

Question: I am leaving my company to join a different employer offering better opportunity, responsibilities, and compensation. The problem is with my present employer: I have worked a long time to build up a base of business, and one that would pay off handsomely in my bonus at the end of this year. However, I would need to stay until March to get paid, which I am not prepared to do, as it would cost me my new job opportunity.

My new company is paying me a sign-on bonus that is greater than the earned bonus I am leaving behind. However, it does not seem that my good fortune with my new employer should absolve my present employer from its responsibility to pay me for my hard work. My present employer says that it pays its bonuses as late as it does to try to keep employees from jumping ship, but it seems to me that their policy would only make employees wait a while – that is, until they got their bonuses – before then “jumping ship.”

Do I have any recourse to collect the bonus I earned by my hard work during the first 3/4 of the year?

Louis
Tulsa, Oklahoma

Answer: Dear Louis: Your question is a common one, but your “facts” and circumstances help me illustrate the simple – and important – points that people need to understand:

1. Rules are rules; agreements are agreements. Since your employer’s “rule” requiring you to remain employed until March to collect a bonus is simple and clear, and was known to you, you are expected to honor it, or suffer the stated consequences. We all set up “rules” in our relationships that we expect others – once told of them – to respect and honor, just as every city and town erects stop signs and red lights for the public safety. While I surely do understand your disappointment at not getting paid bonus for the nine months of your efforts, the rule is simple, it is clear, and it was known to you. For that reason, you are expected to follow it, or suffer the consequences of not doing so. Your employer has no “responsibility” to pay you a bonus for your hard work if you did not fulfill your end of the bargain: staying until March to collect it.

2. If you were laid off, I think you could argue that you should be paid at least 3/4 of your expected bonus, but it is a much tougher argument to make if you voluntarily resign. I am frequently asked whether an employee should get a pro rata bonus when laid off due to no fault of his or her own, and my answer is almost always “Yes.” One reason is that they did nothing to bring about the loss of bonus themselves. On the other hand, an employee who resigns for better compensation and other benefits somewhere else has in my eyes chosen to lose his or her probable bonus, in a calculated way.

3. Sometimes, in event of “involuntary resignation,” we successfully argue for a pro rata bonus, but “involuntary resignation” does not seem to be what you are doing. Though the words “involuntary” and “resignation” do not seem to fit together very well, by combining them we have invented this new concept that helps a lot of people. If a person resigns because, as examples, (a) he or she is facing extreme harassment, (b) he or she is facing demands to act in an illegal fashion, or (c) he or she is working in an unsafe workplace, their “resignation” is surely not “voluntary.” In these circumstances, an “involuntary resignation” is submitted, along with a request – quite reasonable in these circumstances – for pro rata bonus. The description you presented for your own resignation, though, contains no such exigent circumstances, and so I don’t think this option is available to you, either.

4. Any good relation – and especially a working relation – requires trying to see the world through the other person’s eyes. I cannot stress this point enough. Although I am a lifelong advocate for employees, I am also an employer, myself. The way I see an employer’s requirement that its employees stay until March in order to collect the annual bonus is that bonuses have two different purposes: (a) for the employee, it is surely intended as a reward, whereas (b) for the employer, it is surely intended as a retention measure. I think, just as “it takes two to tango,” both employee and employer are entitled to get something out of the working relation, and every part of it. Your email to me failed to take that other perspective into account. May I suggest you will do better in any workplace “navigation or negotiation” if you bear that in mind.

Louis, sorry if this is not the “good news” you wanted to get from me. But as you know if you read my blog frequently, I “call them as I see them.” The good part of your resignation, though, is that you are apparently headed to a more suitable, more remunerative, and more responsible position. So, what is there to complain about? See the bright side of things; it’s always a more enjoyable side to see.

Best,
Al Sklover

P.S.: One of our most popular “Ultimate Packages” of forms, letters and checklists is entitled “Ultimate Resignation Package” consisting of two Model Resignation Letters, a Model Involuntary Resignation Letter, a Memo to HR pre-Exit Interview, and our 100-Point Pre-Resignation Checklist. To obtain a complete set, just [click here.]

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

© 2012 Alan L. Sklover, All Rights Reserved.

“Resigned due to stress, overwork and burn out. Can I get unemployment?”

Published on August 10th, 2012 by Alan L Sklover

Question: I am a 7-year employee who has never gotten into trouble. I put in my resignation due to stress, being overburdened with more tasks than anyone could accomplish, having to teach new employees and, at the same time, take care of patients.

After I left, they hired three people to do my job, and that does not count the HR Director, who is now doing the training part.

I was burnt out and overworked. Can I get unemployment?

KZ
Avon, Indiana

Answer: Dear KZ: Your question is very, very common, and more and more common every day. As noted below, you won’t know if you are eligible for unemployment benefits unless and until you apply:  

1. Your state, Indiana, follows the general rule: whether you are eligible for unemployment benefits depends on why you are unemployed. On the one hand, your employment might have been terminated at the decision of your employer. If your employer terminated your employment “without cause,” meaning for such reasons as layoff, plant closing, job elimination, restructuring or the like, then you are eligible for unemployment benefits. If your employer terminated your employment “for cause,” meaning that you engaged in bad conduct (such as theft, assault, tardiness, insubordination, etc.) then you are ineligible.

On the other hand, you might have been the one who made the decision to terminate the relation. In fact, this is what you describe as having happened. If you resigned “without good cause,” that is just because you wanted to pursue a hobby, or to return to school, or to retire, then you are ineligible for unemployment benefits. If you resigned “with good cause,” that would make you eligible.

2. Here are the reasons that the Indiana Department of Workforce Development cites as “good cause” to leave your job and still be eligible for unemployment benefits: (a) if your employer unreasonably changes the terms and conditions of your work; (b) if there are safety violations at your work site; (c) if you have been the subject of harassment; (d) due to domestic or family violence; (e) if you are moving to follow your spouse who has been relocated by his or her employer; (f) military service; or (g) other such reasons of a similar nature.

3. Whether your facts and circumstances are considered “good cause” for your resignation will be determined on how well you describe the difficulties you encountered on the job. In your note to me, you said you were “overworked.” Does this mean an extra 30 minutes a day, or an extra 3 hours a day? Did it risk harm to your patients? Did it risk harm to your health? In your note to me, you described stress. Did it affect your sleep, your digestion, your vision, your blood pressure? If you include these kinds of details, and graphic images of what happened, you will be far more likely to be given unemployment benefits. The words “stress” and “overworked” are not near as powerful as the specific details you might provide.

The inability to assist patients the way patients are entitled to be treated may, in fact, constitute a “safety violation,” which is a listed “good cause” for resignation. The same thing would probably go for any danger to your own health – for example, not providing you with clothing or masks necessary to protect your own health – that took place.

As I often say, “Specificity yields credibility, and credibility means convincing.”

4. Also, it would help if you described the reasonable efforts you may have used to address the situation, in case your employer claims “She never complained to us.” Unemployment officials are far more likely to help others if they see that the others have first tried to help themselves. That is just human nature. Your note to me did not describe any such efforts, but something tells me that you did, in fact, try really hard before resigning to resolve the situation. Make sure you bring these to the attention of those who may review your application for unemployment benefits.

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!

5. It is for people like you, in situations like yours, that we strongly suggest our own invention called the “Involuntary Resignation.” Imagine, for the moment, that in your resignation letter you said “I am not resigning voluntarily, but I must do so (a) for my health, or (b) for safety reasons, or (c) because I am being terribly harassed, or (d) you have unreasonably altered my hours, pay and duties.” That would be very helpful to you when applying for unemployment benefits right now. In fact, that is really what did happen to you: your resignation was far from voluntary. 

It might be helpful, for the future, to become familiar with the Involuntary Resignation concept. I wrote a newsletter on this very topic some time ago entitled “Involuntary Resignation – Standing Up, Not Giving Up, to an Intolerable Situation at Work.” You can read it by simply [click here.]

I’ve also done a YouTube video on this same subject, entitled “Involuntary Termination: Leaving Without Losing.” If interested in viewing it [click here.]

For those who would like to present an Involuntary Resignation, but don’t know “What to Say and How to Say It,™” we offer a “Model Involuntary Resignation” letter that you can use. To obtain a copy – Delivered Instantly by Email – just [click here.] “What to Say and How to  Say It”™ 24 Hours a Day.

6. More information about unemployment benefits and eligibility in Indiana can be found at www.in.gov/dwd/files/Claimant_Handbook.pdf. I have reviewed the website of the Indiana Department of Workforce Development, and have found it to be unusually helpful, clear and organized. Why don’t you give it a look-over.  

KZ, as I said at the beginning of this answer, you won’t know if you are eligible for unemployment benefits until you apply. Even if you are turned down, I suggest you should appeal. But one thing is for sure: give it your best try, and be your own best advocate. Be specific, be thorough, and be convincing. That’s the way to do it. 

Very Best,
Al Sklover

P.S.: Looking for a New Job? We offer a 152-Point Master Checklist of Employment Negotiation Items to help you make sure you have not (a) forgotten to ask for anything, (b) failed to raise any issues, and (c) that your interests are protected in your offer letter and/or employment contract. To obtain a copy, just [click here.] Delivered by Email – Instantly!

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

© 2012 Alan L. Sklover, All Rights Reserved.

“Can my boss make me sign a letter saying I left voluntarily in return for a letter of recommendation?”

Published on February 21st, 2012 by Alan Sklover

Question: Alan: I have to resign from my job due to a foreclosure, and because after my husband lost his job, he has a new one in another state, and so we are relocating.

I have asked my employer for a letter of recommendation. In response he wrote up a letter that he wants me to sign stating that I have freely left my position at work. He wants me to sign it, or he won’t give me a letter of recommendation.

Is that legal, and do I have to give him that letter legally? He has known about my situation for over a year and knew this was coming. I’ve worked here for 7 years. Thank you for your assistance.

Maryann
San Francisco, California

Answer: Maryann: Your question is interesting, because to me it illustrates the essence of severance, even though you are resigning and you are not receiving any “severance.” Allow me to explain.

1. There is no legal requirement that an employer has to give an employee a letter of recommendation; it’s usually a courtesy. From what you’ve written, it would seem your employer is willing to give you a letter of recommendation. That’s good: not every boss is willing to do that. However, it also seems he is asking a “price” for doing so: a letter saying you “freely” left work. Thus, it seems that he does not want to do a “good deed,” but instead wants to do a “good deal.” Instead of being “courteous,” it seems he is being “clever.” When I think of it, your departure is “involuntary” when considering your foreclosure and husband’s circumstances, but pretty “voluntary” with regard to your employer. At least that is the way it seems from what you’ve written.

2. The letter your employer is asking for seems like a kind of “Letter of Recommendation” from an employee to an employer. The requested letter seems intended to lower your employer’s risks that you (or perhaps an attorney on your behalf) may later claim either that you resigned “involuntarily” due to abuse, harassment, hostility, discrimination or other evil. Or, your employer might have a policy of paying severance (or other benefits) to those who are laid off that he is concerned you may make a claim for. It’s the word “voluntary” that leads me to those thoughts. Frankly, I’ve never before heard of an employer requesting what your employer is requesting, but then again, we all hear of new things every day, and new does not necessarily mean “bad.”

3. Is the “price” – that is, the letter your employer is requesting – going to cost you anything? If the “trade” of letters is not going to “cost” you anything, why not do it? One concern I have for you is that, if you apply for unemployment benefits, your reason for leaving your job – that is, to join your husband – might well make you eligible, but the letter your employer is requesting might, instead, make you ineligible. You did not mention any such concern in your note to me, but it sure did pop into my mind pretty quickly. Consider other things, too, that you might be due if your departure was “involuntary.” Union benefits? Layoff notice? Continuation of health insurance? Give a good thought to those things, and others like them.

4. You might consider a compromise of sorts: an “exchange of letters,” but perhaps ask for one more thing: a written assurance from your employer that it won’t contest any application you make for unemployment benefits. Your potential loss of unemployment benefits is the one “risk” I can see coming from your granting the requested letter. If you want to eliminate that risk, or at least reduce it considerably, a written assurance from your employer that it won’t contest any unemployment application you might make, would be a way to address it. If there is something else you think you may need, ask for it as part of the “deal,” and see if it is granted.

This is what you seem to need: our Model Letter to Former Managers and Colleagues Requesting Positive Reference Letters, with Three Sample Reference Letters. “What to Say, and How to Say It.”™ To obtain your copy, just [click here.] Delivered by Email – Instantly! 

5. Though this is not a “severance situation,” it closely resembles one. The essence of severance is this: at the time of an employee’s “departure,” (a) the employer gives the employee some “transition assistance” and, in return, (b) the employee gives the employer a signed document that eliminates or reduces the employer’s potential risks. The employee’s “transition assistance” might include a letter of recommendation, an agreement not to contest unemployment, and other things, while the “risk reduction” the employer gets is usually a release of claims from the employee. Sounds familiar, no?

Bottom line, Maryann, there is nothing “legal” or “illegal” about your employer not being willing to give a good letter of recommendation unless he receives a “letter” in return. My suggestion to you is to do the best you can, hopefully without cost, damage or peril to you and your family, to move forward in a strong, positive way. If that requires a little “deal-making” where it does not usually take place, like the “deal” your employer seems to want, then “so be it.”

I wish you and your family nothing but success in your move and in your new surroundings. I am sorry for your foreclosure and other misfortunes. If you have your health, your marriage and (a bit of) your sanity, you are in the most important ways “wealthier” than most.

My very, very best to you. Thanks for writing in.

Best,
Al Sklover

P.S.: When leaving employment – for any reason – ALWAYS ask to be paid for Accrued But Unused Vacation. Use our “Model Letter Requesting Payment for Accrued but Unused Vacation – with 12 Great Reasons.” It shows you “What to Say and How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!

 

Alan Sklover’s Timeless Classic, Newly Updated and Revised

Fired, Downsized, or Laid Off:

What Your Employer Does NOT Want You to Know
About How to FIGHT BACK

Now available by Instant Download to Your Tablet
(Ipad, Nook, Kindle, etc.)

OR

Instantly Downloadable PDF to Your Home Printer

FOR EITHER METHOD JUST [CLICK HERE]

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

© 2012 Alan L. Sklover, All Rights Reserved.

“If I resign will I still get my retirement money I put in?”

Published on September 18th, 2011 by Alan L Sklover

Question: If I resign will I still get my retirement money I put in?

Terry
Harrisburg, Pennsylvania

Answer: Dear Terry:

1. With very few exceptions, money you have contributed to your retirement remains yours, no matter what. An employee who contributes money to an employer-sponsored retirement plan should never lose those monies, due to resignation or any other reason. They are held by a retirement plan “administrator” who holds those monies for the employee in a “fiduciary” capacity, which means “with the highest level of trust.” A retirement plan “administrator” who fails to return monies to an employee who has contributed those monies can be held personally liable for those monies, and even criminally prosecuted.

2. However, some retirement plans provide that you cannot have your monies back immediately, but must wait until you retire, or reach a certain age, even if you resign years before then. In these retirement plans, the contributing employee keeps his or her money, but cannot take the money out of the retirement plan until he or she retires from employment, or reaches a certain pre-set age, most commonly 60 or 65 years. Some retirement plans also permit distributions of retirement funds only during certain periods, such as January 1 to January 15 of each calendar year.

3. Many retirement plans provide that, if the employee engages in certain misconduct, the employer-contributed monies are forfeited. Examples of misconduct by an employee that may result in loss of employer contributions to his or her retirement account include (a) misconduct on the job, such as embezzlement; (b) misconduct when leaving the job, such as failing to give a certain amount of pre-resignation notice, say three or six months, or (c) misconduct after the job, such as going to work for a competitor of the employer.

4. No matter what a retirement plan provides, Plan Administrators always have some discretion in how they administer the Plan. While Human Resources representatives are usually reluctant to admit it, and few Retirement Plan Administrators like to discuss it, Retirement Plan Administrators are almost always permitted significant discretion in how they “administer” the retirement plan. Thus, if you are in need of medical care, the Plan Administrator might release your contributed retirement funds earlier than the Plan provides to permit you to obtain needed medical care. Or, if due to an illness you have a limited life expectancy, early distributions may be granted. Each retirement plan has its own set of rules, guidelines and procedures for such “discretionary” acts by Plan Administrators.

5. Though Retirement Plans are not the most interesting reading, you would be wise to obtain, retain and review your own Retirement Plan. Though they contain a good dose of legal mumbo-jumbo, a retirement plan contains the rules, guidelines and procedures applicable to your retirement monies. I strongly urge you to obtain a copy, and either review it yourself, or have an attorney or accountant do so for you.     

Terry, I hope this provides you with the information and insight you seek. Thanks for writing in.

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

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

“If I give notice, but am told ‘leave now,’ do I get paid?”

Published on March 29th, 2011 by Alan L Sklover

Question: I was given documentation that said I had only 24 hours to make a decision: go through an “Action Plan” and face being fired if it was not successful, or instead resign. I decided to resign. 

I submitted a resignation that clearly stated it was “involuntary” considering the circumstances, and that I would leave in four weeks. I was then informed that the company does not want me to work for the four weeks, and they will not pay me for that time, either.

No where in the documentation did it say that the resignation had to be immediate. I think I am entitled to the four weeks pay, since they will not allow me to work for the four weeks.

This is a “right to work” state. Can you advise? Thank you.
        

Clara
 Sioux Falls, South Dakota

     
Answer: Dear Clara:   

Your question is a common question with an uncommon twist. I think you may be entitled to collect your four weeks pay. At the least, I think you should try.   

a. First, as an “at will” employee, either employee or employer can decide when the relation ends. As frequent readers of our SkloverWorkingWisdom blog know, unless you have some kind of employment contract, the employment relation is “at will,” which means both the employer or the employee have the right to say, “It is over; good bye” effective any time they wish. This question comes up a lot, and usually employees have no good argument to claim they are owed payment for the time they intended to be their “notice period.”

b. Second, however, you seem to  be right: your employer gave you the choice to stay or leave, but did not say when you had to leave, and so impliedly left that detail up to you. I think that, in your case, a “wrinkle” exists: you were given the choice of remaining on the “Action Plan” (and probably later being fired if you did not successfully complete it) or resigning. However, the documentation given to you did not say when your resignation needed to be effective. In this instance, I think you have a good argument that the “notice period” was up to you to choose, which you did: four weeks.

If your employer did not accept your resignation on four weeks notice, then they should have given you the other option offered: kept you on as an employee, under an “Action Plan.” They did not do that. Thus, they seem to have violated their own offer to you.  

c. Third, therefore, while most employees don’t have a right to get paid the four weeks, you do have a pretty good argument it is due you. It’s for this reason that your case seems to be different than most. This is a good illustration of how a general rule of law that applies to most situations, may not apply to your situation because of one single significant fact. 
 
d. Fourth, I suggest you consider writing to the company CEO, reminding him or her that you have a right to file a State Labor Department Claim for Unpaid Wages, or Small Claims Court demand, for the four weeks pay. With these things in mind, I suggest you write a letter to your company’s CEO requesting the payment within ten days. In that letter I recommend you remind him or her of the facts I’ve noted above, and also that you are aware of your right to file a State Labor Wage and Hour Division Claim for Unpaid Wages, or file a Small Claims Court complaint, as well. [The South Dakota Wage and Hour Division form EForm 1655 can be obtained from the agency by calling them at (605) 773-3682.] 

If you’d like to obtain a Model Letter for Demanding Unpaid Compensation that you can adapt to your own facts, simply [click here].

My own sense is that you have nothing to lose, and everything to gain, in seeking what you are due. I hope this is helpful, I hope you will stand up for yourself, and I hope very much that you are successful.

We would love to hear how you do. Good luck!

Best,
Al Sklover

© 2011 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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