— Danger Ahead:
Expense Reports Are Ending Careers Like Never Before —

According to published reports, Wells Fargo has recently suspended or terminated scores of its employees for errors and mistakes in expense reimbursement reports – believe it or not – in some cases for ordering in meals an hour before they were permitted to do so.

In the case of one terminated employee who contacted us, her intent was merely to have her meal waiting when her conference call ended, yet the outcome was her firing, her forfeiture of $2.5 million in unvested stock, and the end of her career.

Is it a coincidence that Wells Fargo also just announced that it was planning to reduce its workforce by tens of thousands of employees in the coming year?

According to published reports, Fidelity has recently terminated hundreds of employees for allegedly submitting false or misleading receipts related to employee benefit programs that permitted employees to be reimbursed for computers they purchased for work.

In finance, most of such firings or forced resignations must be reported publicly, ending not just jobs but careers and reputations, as well.

Is it a coincidence that Fidelity also just announced that it was planning on reducing its workforce by thousands in the coming year?

I am not one to believe very much in coincidences. And, I am acutely aware that fired employees must forfeit unvested equity, are not entitled to COBRA insurance benefits, and do not get offered severance. It just makes sense to me this might well make many employees especially attractive targets for such “cost savings.”

The same goes for those forced or “permitted” to resign under the dark cloud of such allegations.

And, too, clients in HR Planning suggest that, despite press reports of a shortage of workers, we may be on the verge of a large wave of layoffs – some honest, some disguised – enabled by the introduction of artificial intelligence software.

So, tread ever-so-carefully when incurring any reimbursable expense, and requesting any type of expense reimbursement. Don’t cut corners, bend the rules, or twist the truth. And don’t expect flexibility or reasonability in enforcing “the rules.” The potential consequences are so much greater than the potential benefits.

Forewarned is forearmed. Careful navigation is required.

Caution: There may be Danger Ahead.

For a review of our articles on allegations of misconduct, just [click here.]

For a complete list of our Model Letters, Model Memos, Checklists and Form Agreements, just [click here.]

To arrange a telephone consultation on strategies to deal with such workplace issues, just [click here.]

© 2018 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited

Keep in Touch with Clients During Non-Solicit Periods

“ Make new friends but keep the old.
One is silver and the other gold.”

– Traditional Girl Scout Song

ACTUAL CASE HISTORIES: In recent years, there has been an undeniable increase in the number of employees, worldwide, who are required to sign “non-competition” agreements by their employers. Recently, though, “non-compete’s” are facing greater scrutiny and skepticism than ever before among many Judges, as non-compete agreements frequently entail keeping a working person – and probably a person supporting a family – out of work without a really good reason. Thus, employers and their lawyers are finding the enforceability of non-compete agreements less and less certain as time goes on.

As a result, with the same goal in mind – not losing clients and customers when an employee leaves – many employers are changing tactics. The increasingly popular tactic is to use “non-solicitation” agreements, instead, which permit employees to work for any employer of their choice, but requires them to refrain from “soliciting” business from the former employer’s customers and clients for a period of time, commonly from three months to 24 months. These are finding a more hospitable response from Judges when they are asked to rule on their enforceability.

Judges are far more likely to enforce non-solicitation agreements because they do not mandate the employee’s inability to work in their field of endeavor, but merely avoiding going after the business of the employer’s clients.

Like any other restrictive agreement, employees must abide by the terms of their non-solicitation agreements. That said, we have found, that many of our clients have not only avoided “soliciting” business from their former employers’ clients, but have also avoided any contact or communications with them whatsoever, which is entirely unnecessary and often quite self-defeating.

Out of a gut-level – and irrational – fear, many employees completely shut down their communications with their former customers and clients, without good reason, and by doing so decrease the chances that, after the non-solicitation period has expired, they can promptly resume the business relation previously enjoyed, as well as the fruits of it.

Don’t unnecessarily limit yourself. Maintain your valuable and hard-won client relations while under the restrictions of a non-solicitation; just don’t solicit. It’s that simple.

LESSON TO LEARN: Here is the text of a commonly worded non-solicitation agreement:

“Employee agrees that during his or her employment by the Company and for a period of one (1) year after Employee has ceased to be employed by the Company for any reason, Employee shall not, without the prior written consent of the Company, directly or directly solicit, divert or take away, or attempt to divert or take away, the business or patronage of, the Company’s clients, customers, or accounts, or active or prospective clients, customers, or accounts.”

While it may sound confusing, it is easier analyzed if you simply “parse” it – which means cut it up into “bite-sized pieces.” As an experienced employment lawyer, all I see is (1) one year, (2) will not in any way, (3) try to solicit or take away, (4) business, from (5) the company’s clients and prospective clients. Does it say “Stop all communications with customers and prospective customers? No, nothing like that . . . so long as the communications do not “seek to solicit or divert business.”

That distinction is an important one, because the business and personal relations you may have established in dealing with customers and clients are a good part of your value in your field. Those relations do not have to be “ended cold,” but can be “kept warm” until the non-solicitation period of time is over.

Having signed a non-solicitation agreement does NOT mean that you cannot communicate with your employer’s clients. Nor does it mean cannot maintain your personal relations with your former employer’s clients. And, too, it does not mean you cannot plan to solicit their business. It just means that you cannot directly or indirectly “solicit” them or their business.

Far too many people who are under non-solicitation restrictions unnecessarily limit their activities and communications, and in doing so unnecessarily limit their career success, after signing a non-solicitation agreement

If the non-solicitation agreement you signed is worded like the one above, written only with “solicitation” in mind, then you are free to do everything else. So long as you do it very carefully, it may be very much in your interests when later – after the non-solicitation period has expired –
soliciting their business.

Life is hard enough. Don’t defeat yourself. Do keep in touch with the clients of your former employer. By continually keeping in touch you only increase your chances of them becoming your clients when “the coast is clear.”

WHAT YOU CAN DO: If you have signed a non-solicitation agreement, bear these thoughts in mind, and don’t shortchange yourself:
Read the rest of this blog post »

Question: Dear Alan: My husband was informed that his position will soon be eliminated due to restructuring following a recent company acquisition. A lower-paying position at the company was identified which is available for him to apply for, and he will be given preferential consideration for this job. 

We are wondering about negative consequences of his applying for this job. What happens if (1) he fails to apply? (2) applies, and does not get it? or (3) applies, is offered the position, and declines it? 

Denise
Anchorage, Alaska

Answer: Dear Denise: Yours are common questions and ones that surely produce anxiety. Most of the answers to your questions can be best determined by inquiring to Human Resources, and to your state’s unemployment benefits agency. That said, let me do my best to provide you with the guidance to begin:

1. Severance questions are best answered by review of your employer’s Severance Plan. When employers engage in a downsizing or layoff, most have first prepared what is commonly called a Severance Plan, which is a list of the “rules and regulations of who gets paid what.” Employers do this in good part so they can prevent employees saying that they treated different people differently due to “illegal or improper reasons” such as discrimination, retaliation, or harassment. 

Your first place to look for answers to your three questions about severance eligibility is your husband’s company’s severance plan. It should be available upon request from his employer’s Human Resources staff, or possibly online at his employer’s internal website.

By the way, Human Resources may direct you to a shorter, abridged version of the Severance Plan called a Summary Plan Description (or “SPD” for short.) Chances are that an SPD will not have the answers you need; request a copy of the full Severance Plan, or digital access to one. 

We offer a 94-Point Master Severance Negotiation Checklist to make sure you don’t miss any severance-related issues or fail to spot problems in severance agreements. Sure helps to reduce anxiety! To obtain a copy, just [click here.] Delivered by Email – Instantly!

2. If the Severance Plan is not available, or does not exist, or does not answer your questions, your questions should be submitted to Human Resources in writing. Some employers, especially smaller employers, may not have a written Severance Plan. At times, it may be difficult to locate a copy. Sometimes it does not contain the information you seek. In any of these circumstances, your questions are best submitted to Human Resources in writing, and most especially in an email to the Head or Director of Human Resources. They should be able to provide the answers you seek. 

Smaller employers may not have a Human Resources department. If that is the case, your severance-related questions should be directed to a member of Senior Management, such as the Chief Operating Officer, Office Manager, CEO or owner.

Deadlines are important; don’t let your severance deadline expire. To help you ask for more time, we offer our Model Request for More Time to Review/Sign Your Severance Agreement. It shows you “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly!  

3. A very important factor to consider – because the employer and unemployment agency will surely both consider it – is this: How “different” or “lower” is the other job that is available? Many different factors go into what consequences might flow from a laid-off employee not applying for, or not accepting, an open position. The term most often used by employers, by state unemployment agencies, and by Courts is whether the available job is “suitable employment.” 

For example, an 88-year old great-grandmother who was a secretary for an oil company would almost surely not be denied severance or unemployment benefits if she declined a different job working as an oil rig construction worker. Likewise, a warehouse manager in Illinois would likely be unlikely to lose severance or unemployment benefits because he turned down an open position with the same company’s warehouse in Pakistan. Neither would be deemed “suitable employment” for severance or unemployment benefits. 

On the other hand, a near identical job that paid $10 a week less, or had a smaller desk, would surely be deemed “suitable employment.”

4. Eligibility for Unemployment Benefits for someone offered a “lower” or “lower-paying” position will depend almost exclusively on whether it is deemed “suitable employment.” Suitable employment” is an imprecise term, and may be viewed quite differently by different people. It may vary from one part of the country to another, and may mean different things to different people. Factors looked to include (i) whether the employee has experience or training for the available position, (ii) how much lower the wages are, (iii) whether the hours are changed from daytime to nighttime, or vice versa, (iv) the degree of commuting required, and (v) the degree of hazardousness between the two different positions.

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. While you have a Severance Plan and Human Resources Department to advise you as to severance, Unemployment Benefit agencies rarely, if ever, provide “advance opinions” on eligibility. Just bear in mind that, when applying for Unemployment Benefits, you have to contend with a government agency, meaning (i) a larger bureaucracy, (ii) rules that often are not followed carefully, and (iii) far less sense of personal accountability. Thus, you stand on firmer ground when depending on employer “rules and regulations” than when you put yourself before state Unemployment agencies. 

On the other hand, you have an automatic right to appeal unemployment benefits denial, which often does work to the employee’s benefit.

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!  

Hope this this is helpful. Good luck to your husband in his upcoming job transition, whatever he decides to do. 

My Best to You,
Al Sklover 

P.S.: Our Sales Affiliates make real income by recommending our Model Letters, Memos, Checklists and Agreements to their friends, family and colleagues. You can, too. Just [click here.] 

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

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

“A vacation is what you take when you can no longer take
what you’ve been taking.”

 –       Earl Wilson     

ACTUAL “CASE HISTORIES”: According to the Bible, even God took a day off after creation. And, so, too, every now and then you need a time to rest, relax and recuperate from what you do all day, all week, and all month long. And that is to be expected. 

We receive many questions from our blog visitors about vacation rights and vacation pay. So, in hopes that you are planning a time to recharge your own batteries, and to help you get all of the respite you truly need, we have put together these 50 FAQs about vacation time and vacation pay, and the answers to each. 

LESSON TO LEARN: As it is with every other aspect of the employment relation, it pays to know “the rules” of your workplace related to vacation rights and vacation pay, so that you don’t  unknowingly violate them, but instead follow them, and make sure others follow them, as well, to your best advantage. 

Because so many employers are trying to cut back on pay and benefits wherever and whenever they can, it is more important than ever to know your rights and to be prepared to stand up for  those rights in a smart and effective way.  

HERE ARE OUR 50 “FAQs” ABOUT VACATION AND VACATION PAY: Remember: These are generalized answers, intended to provide generalized understanding, only. Your state law might provide differently.  Read the rest of this blog post »

Question: Hi, Alan. I was terminated by a company here in the U.S. that is based in Massachusetts. I live in New Jersey and have worked out of my home office from the beginning I am currently negotiating a settlement.

If I need a lawyer, how do I determine if they should be from Massachusetts or New Jersey?                                                                                                

D.M.
Morristown, New Jersey

Answer: Dear D.M.: Your question is quite common, increasingly so as people increasingly work distant from the their employers’ headquarters. Unfortunately, as you will see, the answer to your question is not as simple, clear and definite as you might like. But you asked, so here is the answer:            

1. As a general rule, you will likely want to hire an attorney who is familiar with the laws that are applicable to any issues that now exist (or may arise) in the course of your discussions and negotiations. Simple common sense would suggest that you would be wise to use an attorney licensed in Massachusetts if the issues in your negotiation are ones that require analysis under Massachusetts law, and the same goes for hiring a New Jersey lawyer to resolve legal issues of New Jersey law. 

Unfortunately, that simple, common-sense approach is often quite difficult to follow and does not really apply to severance or settlement negotiations, as will be further explained below. 

2. The laws that apply to any issues that might arise in your severance negotiations may be determined by an agreement you signed. Quite often, employers say to themselves, “Let’s make sure that if any employee takes us to Court, or gets into a legal hassle with us, it is our home state’s laws that apply, because this is where our lawyers are and they are most familiar with this state’s laws.” 

For this reason, it is common for employers to write into their employment-related documents, including (a) employment agreements, (b) job offer letters, (c) bonus agreements and plans, (d) stock and stock option agreements and plans, (e) retirement plans, and even (f) employee handbooks that “Any and all disputes that arise between the employer and the employee will be decided under the laws of the state where the employer’s corporate headquarters or home office is located,” or words to that effect. 

Thus, issues that arise related in some fashion to those documents would be resolved under the state’s laws that is noted in the document, and a lawyer licensed to practice in that state would likely be most familiar with that state’s laws.  

3. However, even if you signed an agreement like the one described above, the laws that apply to any issues that exist may be determined, instead, by the laws of the state where you worked. Most states have laws that provide that, if the employee worked in their state, certain issues arising in that employment relation must be decided under that state’s laws, no matter what agreements may have been signed. 

This started a long, long time ago, when the individual states became associated with each other as the United States. The idea was that each state is free to set standards for certain conduct within its own borders, and in the employment context those state standards include: (a) whether you need a license and a supervisor to act, for example, as a mortgage broker, (b) what workplace safety standards must be met by construction-company employers, (c) whether you are entitled to be paid for accrued but unused vacation days if you resign or are terminated, and (d) what the minimum hourly wage may be that is paid to workers. These “state-standard” laws vary considerably from state to state.

 So, an employee working in New Jersey, who believes she is due (a) payment for accrued but unused vacation, and (b) was also denied the legal minimum hourly wage, can file a legal claim using New Jersey law against an employer headquartered in Massachusetts, even if she signed an agreement that said, in effect, “I promise to use only Massachusetts law to resolve any and all disputes.”    

4. To further complicate matters, it is quite possible that the laws that apply to any issues that might arise in your negotiations may be federal laws, which would make which state your lawyer was licensed in entirely irrelevant. As an example, the primary laws that affect entitlement to overtime pay anywhere in the United States is the federal Fair Labor Standards Act (commonly known as “FLSA”). 

If the issues that arise in your settlement negotiations arise under or are related to FLSA, it would not matter in what state in the U.S. your lawyer was licensed to practice. So long as he or she was licensed to practice law, he or she could advise you on issues related to these laws, and with certain technical requirements met, could appear for you in any Federal Court. 

5. And – hold onto your seat – the issues that exist in your settlement negotiations may be those of (a) New Jersey law, AND (b) Massachusetts law, AND (c) federal law, all at the same time. D.M., it has happened to me many times: I am licensed to practice law in New York, I am assisting a client who worked in Texas, the company is headquartered in Connecticut, and then I discover that some of the issues involve Illinois law, as well.  

What an attorney does in these circumstances is to (a) try first to figure out what laws, IF ANY (see below) are applicable to the matter at hand, and (b) then determine whether he or she needs to consult a “local” attorney to assist on that issue. Frankly, it is not usually necessary.  

A few years ago, I was representing a man working in the African country of Namibia (the country immediately north of South Africa), and I had to determine how much notice, if any, was required to be given to terminate an employee. I contacted a Namibian attorney, luckily for  me who spoke English, and conferred with him on that particular issue. I have done that same thing in states all over the U.S. and in countries all over the world.    

6. All of these confusing and at times contradictory issues aside, it usually does not matter: an experienced severance attorney from either of those two jurisdictions, or any other jurisdiction for that matter, should prove just fine. I say this because in severance negotiations, most of the issues that require negotiation are truly “business” issues, not necessarily “legal” ones. Even as to truly “legal” issues, most employers do not think about “Who is right according to the law?” or even “Who is going to win in Court?” That is just not how business people usually think. 

Rather, what business people really think about is what really concerns them, as business people: “What will this cost me in terms of legal fees, the company’s reputation, employee morale, distraction from our main business focus?” and the like. These “business” issues, believe it or not, are far more prevalent and central in severance negotiations than are truly “legal” issues. It is this type of “legal” experience you need on your side. 

The reason you need an attorney in such discussions is more for his or her business and negotiation experience and acumen, and how well he or she can spot issues, negotiate resolutions, and draft agreements, and far less his or her “legal knowledge.” 

We offer a Model Letter entitled “To Employment Attorney – Seeking Information for Retention.” If you would like to obtain a copy for your use, just [click here.]  

If, as I did in my Namibian case, your attorney ends up needing local legal knowledge, or local court experience, he or she can then locate and secure it for you which, quite frankly, does not happen often.    

For your negotiations, you might be interested in our Master 94-Point Severance Negotiation Checklist, to give you the peace of mind and freedom from worry that you have forgotten to raise or entertain certain points of discussion and negotiation. To obtain a copy, just [click here]. Delivered by Email – Instantly! 

D.M., I warned you that this was not going to be “easy.” That said, I hope I did clarify a bit for you the real things you need to know and bear in mind when you hire an attorney in this field. Go with experience and compassion: the rest will fall into place.  

Best,
Al Sklover

P.S.: Since you will soon be looking for a new job, one of our most popular “Ultimate Packages” of forms, letters and checklists is entitled “Ultimate New Job Package” consisting of 9 items, including Resume Cover Letter, Thank You After Interview, Memo Confirming Terms Offered, Response to Offer Letter, our Master Checklist of Items to Negotiate, and 50 Good Reasons to Explain Your Departure from Your Last Job. To obtain a complete set, just [click here.] 

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

© 2013 Alan L. Sklover, All Rights Reserved.