Short Answers on Saturdays Archives

Seven Short Q & A’s on Saturday

Published on June 30th, 2012 by Alan L Sklover

Question 1 – Is age 49 too young to ask for a bridge to retirement? Alan, I have been on a medical leave of absence due to stress. Before my leave, I was considered a “star performer” and given the most challenging accounts to manage. Due to a merger/downsizing, all people in my department were required to re-interview for their positions. To hold my position, I had to interview while out on leave. My doctor reluctantly approved me to interview understanding my need to keep my job. The interview was with my boss whom my relationship was somewhat a strained one. I was not successful in keeping my position, but was not terminated as I am technically out on a medical leave. Upon my release to return to work, if there are no jobs available which I qualify, I will be given a pink slip. My question is: at 49 years old – could I negotiate with my employer to bridge me to retirement or is 49 years to young to even consider?

Janet
Los Angeles, California

The Short Answer is “Yes, Probably.” In my experience, most employer-provided retirement plans have 60, or perhaps 55, as the youngest a person may retire. For that reason, asking for a “retirement bridge” of six years is a “stretch,” to put it mildly. That said, credit for additional years in pension calculation is a very reasonable thing to ask for. After being a star performer, not being chosen for “rehire” based on an interview that took place when you were out on disability leave due to stress might just be a very good argument for there having been disability discrimination. Who knows what was in your boss’s subconscious mind when he decided not to rehire you? That legal claim might be sufficient leverage to get you the retirement bridging you seek. I say, “Go for it.”

Best,
Al Sklover

Question 2 – For how long after I left my Illinois employer can I see my old personnel file? Dear Alan: I am a former employee of a company in Bloomington, IL. It has been 5 years since I quit the job. I want to know if I still have rights as a previous employee to see either my personal or HR file? It seems some of my most recent colleagues here in Georgia know about my file and issues at this previous employer. It is really strange, and how could they know? Can I request to see my file in hopes that it will help in some way? Please advise.

Bonnie M.
Newnan, Georgia

The Short Answer is “One year.” Sorry, Bonnie, one year is the answer. Illinois’s Personnel Record Review Act of 1984 permits former employees to review their personnel records, but only if they make such a request within one year of their departure. Perhaps you could ask one or two people, “I’m just curious . . . how did you know that?” I wish I could be more helpful.

Good Luck,
Al Sklover

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Question 3 – Can an employee be forbidden to contact the company’s HR department? My friend has been employed by a health chain for seven years and is an assistant manager. He was informed that the district manager was in meetings all day. Having a question concerning a new employee, he contacted the company’s HR department and was then contacted by his district manager and instructed twice not to call HR again. How can an employee be denied the right to contact HR; isn’t that the purpose of the department?

Chris
Akron, Ohio

The Short Answer is “Yes.” Chris, it is with the utmost of respect to all of my HR friends out there that I say this: HR is a department that serves the needs of an employer’s management, not the needs of the employees. This is a critical understanding that all employees must understand. Please take a few minutes to view my YouTube video entitled “The Seven Timeless Truths about Human Resources.” You can do so by simply [clicking here.]

Best,
Al Sklover

Consider our “Ultimate Resignation Package” consisting of two
Model Resignation Letters, a Model Involuntary Resignation Letter, our 100-Point Pre-Resignation Checklist, and more. To obtain a complete set, just [click here.]

Question 4 – Can I be fired for refusing to acknowledge receipt of a Performance Improvement Plan (“PIP”)? My employer is telling me that he wants to put me on a 1 month PIP, and that at the end of the PIP if determined my job may be terminated. At this stage I am being asked to acknowledge by signing that I have received the form for initiation of a PIP and have knowledge of its contents. What happens if I do not respond? Can my job be terminated on this basis? If so, do I disqualify for unemployment insurance benefits?

Gubbi
Matawan, New Jersey

The Short Answer is “Yes.” There is just no good reason to refuse that you have received something from your employer. If you are not being asked to say that you agree with its contents, then all you are being asked to do is to confirm receipt. To refuse to do so is insubordination, and therefore grounds to lose your entitlement to unemployment benefits. I know you are probably nervous and scared, but this much is clear: if it only says, “I acknowledge receiving it,” then you should do so.

I hope you will do so,
Al Sklover

Consider our “Ideal PIP Response Package” of two Model Responses (first and second), Model Letters seeking support from others, and our 152-Point Guide and Checklist for a PIP. To obtain a complete set, just [click here.]

Question 5 – Can an employee’s family have two health insurers? My children currently have their health insurance thru Healthy Family, a state program. My husband’s health plan is open for enrollment. We want to add the kids into his health plan because the premium costs the same. This is to cover just in case the kids don’t qualify for their Healthy Family insurance anymore. We don’t plan on using it because the copay and all is quite expensive. Is it legal not to inform my husband’s employer or insurance company of the kids’ current health insurance? Again, we’re not planning to use it because the copay and all is quite high.

Michelle
City and State Not Provided

The Short Answer is “Yes, provided . . .” Michelle, while I don’t know which state you live in, based on my many years of experience in these matters, I don’t believe there is anything wrong with your children being covered by two health insurers simultaneously, PROVIDED, (a) it is not against the Healthy Family rules, which I would not expect it to be, and (b) you don’t try to collect twice for the same medical expense, which you have written you will not be doing. I think what you are doing is actually quite common, and entirely appropriate.

That is how I see it,
Al Sklover

How about a
Model Letter to Enhance Your Upcoming Performance Review?
Just [click here.]

Question 6 – Can I get fired for making mistakes? Hi, Alan. Can I get fired for making mistakes and making general errors? I am an administrator and get asked at the last minute to prepare reports on mileages for the years. I made a mistake with my report, and heard my boss say “Get rid of her” to HR. Can he do this?

Susan
South Africa

The Short Answer is “It seems Yes.” Susan, I am surely not an authority on South African labour law. However, I spent some time reviewing South African labour law for you, and could not find any authority that says, or suggests, that an employee in South Africa could not be fired for making mistakes. However, it does seem that the South African labour law does require that all acts by employers toward employees be reasonable under the circumstances. For example, were you given sufficient job training? Are you given enough time to perform your reports? If you resort to the Courts in South Africa, these considerations do seem to be reviewed carefully.

Sorry I can’t help you any more,
Al Sklover

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Question 7 – Should I disclose to my employer that I have Attention Deficit Disorder? I am an attorney just given administrative warning. Should I disclose my ADD diagnosis that I have struggled with since learning of it 4 years ago. I have been at this firm for 5+years but now have a new boss.

H
New York, New York

The Short Answer is “Yes.” H, you have everything to gain, and nothing to lose, by disclosing your Attention Deficit Disorder. You may be entitled to assistance or accommodation under your law firm’s policies. You are entitled to a reasonable accommodation to it under New York and federal law. You are entitled to protection against disability discrimination, which may be the real reason for your being given an administrative warning. And you may be given a helping hand by any colleague, partner and HR representative who understands your disorder, can relate to it, and has empathy as a result. There is no shame in your condition. There are advantages in disclosing it.

I hope this helps,
Al Sklover

We offer a Model Memo Objecting to Retaliation at Work.
If interested, just [click here.]

Enjoy our Working Wisdom? If so, please tell a friend. As “working wisdom” spreads, the world improves for each of us.

Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. Questions of over 100 words will not be reviewed. And only one question at a time. If you do submit a question, you agree that Alan’s answers are not legal advice, but only suggestions to consider. Please understand that not all questions can be answered, due to limitations on time and space. Still, we “do our best to do our best.”

Note: Brief Questions are given Priority in Answering

Repairing the World –
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© 2012 Alan L. Sklover, All Rights Reserved. Commercial Use Prohibited.

Seven Short Q & A’s on Saturday

Published on April 14th, 2012 by Alan Sklover

Question 1 – Is there a best way to resign while out on medical leave? Hi, Alan. Please tell me the best way to resign while out on medical (not pregnancy) leave? I have been on medical leave for six months now and do not plan to return for several reasons: (1) I didn’t like my job much; (2) I have a strong desire to make a career change; and (3) I strongly believe that my managers will not treat me the same when I return, based on comments from other employees who returned from medical leave. Thank you so much!

Randi
Los Angeles, California

The Short Answer is “Carefully.” Randi, there are many facts about a person’s employment and personal life that might affect how he or she should resign. They include: (a) Would you like to collect unemployment benefits? (b) Do you have a mentor or “rabbi” at your job who you think might help you in the future? (c) Would you like to get some severance? These factors, and many more, all weigh upon how a person should resign. May I suggest you review my article entitled “Resigning from Your Job: The 21 Necessary Precautions,” which you can do by clicking on the title.

You might also consider obtaining a copy of our “Master 100-Point Pre-Resignation Checklist by [ clicking here ].

Sorry I can’t give you a simpler answer, but that would not be right of me to do without being familiar with you, your life, your needs and your hopes and dreams. But you can do a lot to help yourself . . . that is what our blog is all about.

Good luck in your transition,
Al Sklover

To view our free YouTube Video entitled
Unemployment Benefits – The 12 Basics to Know
Just click here.

Question 2 – What do you think of my supervisor “writing me up” for seeking help from HR? My supervisor included in my performance review comments that I went to HR concerning two matters that directly related to him, essentially “writing me up” for seeking help from HR. I plan to seek further guidance from HR to see if these comments can be edited out of the yet-incomplete review process. I’ve been told by my supervisor that it is within my rights to talk with HR any time I need to. Does he have the right to then criticize my performance for doing so?

Kathy
Atlanta, Georgia

The Short Answer is “It is Improper Retaliation.” Kathy, as you know, seeking assistance from HR has nothing to do with your performance of your job duties. Even if you went to HR five times a day, if you managed to get your work done and done well, it would be irrelevant. What good are rights if you are punished for exercising them? It is likely that what your supervisor has done is a violation of your employer’s anti-retaliation policy. If what you went to HR about was your belief that you were being discriminated against, or harassed, it is likely that what your supervisor has done is even a violation of law. My strong suggestion is that you file a complaint – in writing, by email – for improper, and possibly illegal – retaliation.

Hope this is helpful,
Al Sklover

Job Loss might be on the horizon?
Prepare yourself with our “Ultimate Severance Package.”
Just click here.

Question 3 – Is pay that is lower than your predecessor’s an indicator of discrimination? Question: my employer is paying me $15k less annually than the person before me. Which also happens to be $15k less than the industry standard rate for this area. I did not sign the offer letter but have been working for the lower salary for 6 months now. I am equally qualified and do the same job as my predecessor. The only difference between the two of us is that I am African-American. Now I am not the type to jump on the discrimination bandwagon, but I feel as though there is something wrong here and possibly illegal. Any thoughts?

David
Palm Beach Gardens, Florida

The Short Answer is “Perhaps, but . . .” David, any difference in treatment might be an indictor of discrimination. We have to look at any possible indicator in the context of every other indicator. For example, was the pay in your offer letter the pay being advertised or posted so that it was offered to all applicants, regardless of race? From the facts you have presented, it seems that this may be the case here. Do other African Americans receive lower pay than their Caucasian colleagues? Do you observe a reluctance to hire African Americans, to hire African Americans for higher-level jobs, or to be granted promotions? While I don’t know more facts than you have presented, I do know that more and more frequently these days people are getting paid less than their predecessors and some people are even getting paid less than they, themselves, got paid last year. Sorry, but many more facts would need to be reviewed before even a tentative conclusion of discrimination might be reached.

Sorry I can’t be more helpful,
Al Sklover

We offer a Model Letter entitled
Model Response to Job Offer Letter.”
To obtain a copy, just click here.

Question 4 – What is the filing fee to file a Court Complaint in Colorado Federal Court? I filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) and they issued a “Right to Sue” letter to me. Can you tell me what is the cost of filing a “Pro Se” federal lawsuit? Does the amount of damages have to be more than $75,000 to proceed? Thanks, in advance.

Joseph
Colorado Springs, Colorado

The Short Answer is “$350.00.” The filing fee for the U.S. District Court for the District of Colorado is $350.00. There is no “minimum amount in controversy” requirement when a person is filing a lawsuit that is – as it is in your case – based on an alleged violation of federal law. Most federal courts have a special office set up to help “pro se” litigants – that means people filing lawsuits without the assistance of an attorney – like you are. In my experience “Pro Se Law Clerks,” that is, Court-paid attorneys whose job it is to help individuals like you are extremely helpful, and most Federal Judges are extremely gracious and understanding to people trying to gain justice on their own. You should be praised and applauded for standing up for yourself this way! There is no sweeter justice than justice fought for.

I pray for your success,
Al Sklover

Our Model Letters and Checklists are a
Great “Helping Hand Gift” for a Friend or Loved One
With a Problem or Opportunity at Work. Just click here.

Question 5 – Can an employee on a PIP transfer? I was placed on a Performance Improvement Plan, and eventually terminated. During the course of my Performance Improvement Plan, I made a request to be transferred from under the current supervisor and was always told I couldn’t be moved under the PIP. Is that factual?

Anonymous
Washington, D.C.

The Short Answer is “It is almost never allowed.” Most employers maintain company policies that say “While an employee is on a PIP, the employee will not be permitted to transfer.” I have many, many times tried to figure out a reason for this, and can only come up with one conclusion: If the idea of the Performance Improvement Plan was to help you improve your job performance, then surely you might do better under another supervisor. However, if the real reason for the Performance Improvement Plan is to set a stage to terminate you, then no transfer would be permitted. That is a long way of saying that this is one of the reasons I believe the vast majority of PIP’s are false and fraudulent, not intended at all to “improve performance,” but rather intended only to make firing easier.

That is how I see it,
Al Sklover

Leaving to Get Away from a Problem? Don’t Give Up Your Rights!
Our Model “Involuntary Resignation Letter” is designed for you.
Just click here to obtain a copy.

Question 6 – Am I entitled to accrued vacation time if I quit? I have the Boss From Hell. I found a new job, and gave two weeks notice, even though I am not required to do so. I am owed a fair amount of accrued vacation leave time. My boss is now acting like a Living Nightmare. If I leave before two weeks is up, will I be paid my accrued back leave?

Becky
Rockville, Maryland

The Short Answer is “Yes.” Becky, as of January, 2008, Maryland law was clarified to provide that unused vacation time is a “wage” and must be paid to a departing employee, regardless of the employer’s policy on the subject. The agency is charge of enforcing this employee right is the Maryland Department of Labor, Licensing and Regulation, often called the DLLR. You can send a letter to your (former) Boss From Hell, and tell him or her this News From Earth. If you have any trouble collecting, contact the Maryland DLLR. Their website is www.dllr.state.md.us .

I’m glad you are “escaping,”
Al Sklover

How You Can Lower Your Odds of Being Laid Off
Watch our Free YouTube Video
Just click here

Question 7 – Are there any circumstances under which a terminated employee is not obligated to repay a Tax Equalization debt to his or her employer?

Name Withheld
Doylestown, Pennsylvania

The Short Answer is “No, but . . .” Tax Equalization is a process by which the employer ensures that its employees who they relocate temporarily do not have to pay more in taxes to both their home country and their host country due to their temporary relocation. Sometimes it turns out that, after the employment ends, the employer owes the employee money, and sometimes it turns out that the employee owes the employer money. I have never heard of a circumstance where the debt is forgiven or waived by the employer’s Tax Equalization Plan or Agreement. That said, I have negotiated for employees the waiver of any sums due as a kind of severance. Where there exists a possible claim – such as breach of contract, discrimination, or defamation, just to name a few – the settlement of that claim at severance time may be the forgiveness of the tax equalization debt, or any other debt, for that matter, such as education debt, a loan, or overpaid commissions. I might suggest you review our blogsite section on the subject of Severance.

You might give it a try,
Al Sklover

Resigning? We offer a 100-Point Pre-Resignation Checklist.
If you’d like to obtain a copy, just click here.

Enjoy our Working Wisdom? If so, please tell a friend. As “working wisdom” spreads, the world improves for each of us.
Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. Questions of over 100 words will not be reviewed. And only one question at a time. If you do submit a question, you agree that Alan’s answers are not legal advice, but only suggestions to consider. Please understand that not all questions can be answered, due to limitations on time and space. Still, we “do our best to do our best.”

Note: Brief Questions are given Priority in Answering


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

© 2012 Alan L. Sklover, All Rights Reserved. Commercial Use Prohibited.

Seven Short Q & A’s on Saturday

Published on March 24th, 2012 by Alan L Sklover

Question 1: If my client conversations are recorded, can what I say be held against me? If your job requirement is talking to customers, and those conversations are recorded, can an employer use those conversations against you?    

Name Withheld,
Fitzgerald, Georgia

The Short Answer is “Yes.Most of us are familiar with calling Customer Service and hearing a recording that says, “This telephone call may be recorded for quality assurance purposes.” The reason your telephone calls are being recorded is to ensure you, as the company’s representative, don’t say anything incorrect, improper or indecent. If you do, you can be held accountable for doing so.     

Remember: Loose lips sink ships,
Al Sklover

To view our free YouTube Video entitled
Unemployment Benefits – The 12 Basics to Know”
Just click here.

Question 2: Is this a hostile work environment or bullyingA work colleague has been making demeaning jokes about me. He also publicly demeans and criticizes me in front of patients and visitors. If I speak to him, he turns his back and faces away from me when he responds. Last week he became extremely hostile and angry and tore me down in front of everyone. This is not due to sexual harassment or other discrimination based on me being female, etc. Does this sound like hostile work environment, or just bullying?    

Jackie
Seattle, Washington

The Short Answer is “Bullying.” As you seem to know, in the eyes of the law a “hostile work environment” exists only if the hostility is due to a form of illegal discrimination, such as gender, race, age, disability, pregnancy or other illegal discrimination. While this does not seem to be a “hostile work environment,” I would not call it “just” bullying, either, because bullying is a very serious matter. Bullying can seriously affect health, emotional well-being, and job performance. And, too, it can be a big “turnoff” to patients, their visitors and other “potential future customers.” I urge you to report it to senior-most management, in writing, and remind them that it has even been seen by patients and visitors, who may develop a bad perception of your facility, and even tell others that your facility is not a nice place to be in. Though a bully sometimes gets worse if complained about, more often than that a bully will simply find a different target for his or her emotional poison.

If you are concerned about possible retaliation, we offer a Model Letter entitled “Anonymous Complaint About Bully Boss” on our Model Letters Section of our blogsite that can be adapted to use for a “Bully Colleague,” as well. To obtain a copy [click here].

I wish you peace,
Al Sklover

Job Loss might be on the horizon?
Prepare yourself with our “Ultimate Severance Package.”
Just click here.

Question 3 – Can I be fired for refusing to sign an agreement to arbitrate all employment disputes? I have worked for my employer for over 9 years and my employer just told everyone they have to sign an arbitration agreement that says all disputes can’t go to court, but instead must go to arbitration. Can my employer fire me if I do not sign the arbitration agreement?

Mable
Indianapolis, Indiana

The Short Answer is “Yes.” In any relation, including employment, the parties to the relation are free to establish “rules” for their interactions, so long as the “rules” do not violate the law. If one party does not like the “rules,” that party can ask the other party to agree to change the “rules.” If they can’t agree on the new “rules,” either of the parties is free to end the relation. There is nothing illegal about your employer requiring its employees to sign an agreement to arbitrate all disputes, and firing those who refuse to do so. Though it’s not easy finding a new job, that may be your only recourse, unless you agree to submit all disputes to arbitration.

Sorry for the disappointing news,
Al Sklover

We offer a Model Letter entitled
“Model Response to Job Offer Letter.”
To obtain a copy, just click here.

Question 4 – Am I entitled to commissions on a Purchase Order issued before I left the company? If my customer issues a purchase order for a service project valued at $100,000, and I leave the company before the service has been provided, am I entitled to commissions on the sale, and if so, how would it be calculated if no actual invoices have been generated?        

Jim
New York, New York

The Short Answer is “Depends on your employer’s Commissions Plan or Commissions Agreement.” Jim, whether you have earned any commissions depends, first and foremost, on what it says in your employer’s Commissions Plan or Commissions Agreement. Most commission plans provide that a departing employee is not entitled to any commissions unless, during the period of their employment, payment has been received by the employer from the customer. However, some commission plans provide for earning commissions at an earlier date or event, so you would be wise to review yours carefully.

If you don’t have a copy of your employer’s Commissions Plan or Agreement, you should be able to get a copy from Human Resources. If your employer does not have a Commissions Plan or Commissions Agreement, then New York law would consider your commissions “earned” if the customer had agreed to purchase the services upon all of the employer’s terms. I cannot tell from your letter if when your customer “issues a purchase order” that would mean an “agreement on all terms” to purchase those services. For more info on this subject, check out the website of the New York Department of Labor at  www.labor.ny.gov.

I hope this is helpful,
Al Sklover

Our Model Letters and Checklists are a
Great “Helping Hand Gift” for a Friend or Loved One
With a Problem or Opportunity at Work. Just click here.

Question 5 – Can my former employer put “Must get drug treatment” in a reference? I resigned from my nursing job due to drug abuse. I self-reported to the Nursing Board and am in a Rehab Program. I’m compliant with my Rehab Treatment Agreement, now have a restricted license and am seeking employment. For references, my former employer states they “must” include that I am only eligible for re-hire “if she gets treatment.” They know I’m in treatment and am required to give a copy of my Rehab Treatment Agreement to future employers. I want to be the one who talks to any potential employer about this, and said so to my former employer, to no avail. Can they do that?   

Constance
Baltimore, Maryland

The Short Answer is “Yes.” A former employer is free to put any truthful statement into a reference. It is my expectation that your former employer is being told by its lawyers that, if they fail to alert other potential employers to your need for ongoing treatment, they might be held liable for any harm you might cause to patients on your next job. Though I understand and appreciate your preference to be the first person to speak with any potential employer about this, I don’t think you can stop your former employer from sending out the references they view to be proper. My experience in matters such as yours – as well as the shortage of nurses – leads me to believe that, if you continue in treatment, you will find a job, and be able to restart your productive career once again.   

Your recovery is in my prayers,
Al Sklover

Leaving to Get Away from a Problem? Don’t Give Up Your Rights!
Our Model “Involuntary Resignation Letter” is designed for you.
Just click here to obtain a copy.

Question 6 – If laid off, should I get the severance my division provides, or the higher severance given to people at the division I used to work for? I have been employed with an office equipment manufacturer since 2000. In my fifth year I transferred to another business group which offered outsourcing services. Each business operates as its own entity. My present business group is downsizing and I face possible layoff. I have heard the division I am in has a practice of offering 2 weeks of severance and no more, while the original division I was with offered one week of severance for each year, which would give me at least 5 weeks of severance, and maybe even 11. If terminated should I be “grandfathered” and entitled to the higher amount of severance?

Michael
Merrick, New York

The Short Answer is “Depends on the terms of your division’s Severance Plan, but . . . .” Because you have written “Each business operates as its own entity,” it is most probable – but not definite – that each division also has its own Severance Plan. If this is so, you must carefully review your employer’s Severance Plan. It is possible that your employer’s Severance Plan does “grandfather” you as you describe. In addition, if your employer’s Severance Plan does not “grandfather” you, you have every right – and a good argument, too – to ask that you be treated as if “grandfathered,” anyway, since the two divisions are, in fact, part of the same company. A respectful written request to a senior manager or executive, perhaps even one you know well – but never to Human Resources – sent by email, is your best bet.

Good luck, and in your job search, too,
Al Sklover

“How You Can Lower Your Odds of Being Laid Off”
Watch our Free YouTube Video
Just click here.

Question 7: Facing a disciplinary hearing for using the internet; what’s the best way out? Alan, I am with a company for 10 years. We all use the internet for personal things while on the job. Management was fully aware of this, but never objected. Without warning, I was suddenly suspended for this reason. I now face a disciplinary hearing alleging I engaged in “gross misconduct.” What is the way out?

Bhavin
London, England

The Short Answer is “The truth.” Bhavin, the brief note you have sent seems to suggest your “best way out.” (a) 10 years on the job, so you are apparently quite reliable and trustworthy; (b) No known rule against what you did, so you were not on any official “notice” of its being a serious offense; (c) Everyone does it, adding to the sense that it was not a serious offense, if any offense at all; (d) Management knew of it and did not object, most convincing that it was not considered a serious offense; (e) It did not seem to cause a problem in your work performance; and (f) You seem to want to put this behind you and keep your job.

As is so often the case when misconduct at work is alleged – and true – it is (1) the truth (2) told with honesty and humility (3) by a valued employee, that is the “best way out,” if any way out exists. We all make mistakes, and when our mistakes come to light, facing the truth, and the consequences, is the “best way out.” Incidentally, if you are a member of a union, or have a written contract of employment, your union rules or written employment contract may make such a disciplinary hearing improper under these circumstances. In all events, I hope this works for you.  

Good luck at your hearing,
Al Sklover

Resigning? We offer a 100-Point Pre-Resignation Checklist.
If you’d like to obtain a copy, just click here.

Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. Questions of over 100 words will not be reviewed. And only one question at a time. If you do submit a question, you agree that Alan’s answers are not legal advice, but only suggestions to consider. Please understand that not all questions can be answered, due to limitations on time and space. Still, we “do our best to do our best.”

Note: Brief Questions are given Priority in Answering

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

© 2012 Alan L. Sklover, All Rights Reserved. Commercial Use Prohibited.

Seven Short Q & A’s on Saturday

Published on February 25th, 2012 by Alan L Sklover

Question 1: Can my husband sign away my right to speak my mind about his company? My husband signed a contract today at work with a non-disparagement clause. It reads, “I will not, nor will any member of my family, make any statements about Company Management that is disparaging.” Can my husband sign away my right to speak my mind? Also, what does “family” mean? Does it include uncles? Cousins?   

Anita,
(City and State Not Provided)

The Short Answer is “No, but he can agree to lose his job if you do speak your mind.Anita, what your husband signed is not binding on you, but only on your husband. He cannot sign away your right to speak out about his company, but he can agree to lose his job if you do. As to what constitutes family: there is no clear definition. In effect, your husband has agreed to try to keep his loved ones quiet about his company because, from the company’s point of view, if they know anything bad about them, it probably came from your husband. In my experience it is extremely rare for anyone to lose their job on this basis, because their family members don’t want to hurt them. And, so, the company gets what it wants.    

Remember: Loose lips sink ships,
Al Sklover

To view our free YouTube Video entitled
Unemployment Benefits – The 12 Basics to Know”
Just click here.

Question 2: Where can I get information about work visas in Doha, Qatar? If one is employed in Qatar for more than 10 years, and resigns, after how many months can he reenter under another sponsor?   

J.B.M.
Doha, Qatar

The Short Answer is “www.QatarEmbassy.net.” J.B.M., though I have been practicing employment law for many years, I am not at all qualified in the area of work visas, which requires specialized immigration or visa knowledge. In looking for information about your question, I have found that Qatar work permits many not be obtained by employees, but only by employer-sponsors. For the many details you seek, I recommend you start your search at www.QatarEmbassy.Net, which is the website of the Qatar Embassy in Washington, D.C..

I wish you success,
Al Sklover

Job Loss might be on the horizon?
Prepare yourself with our “Ultimate Severance Package.”
Just click here.

Question 3 – How long does someone have to file a claim of legal malpractice? First, thank you for your site. How long does someone have to file a claim of legal malpractice involving employment litigation? If an attorney arrives to court the day of the trial, having never interviewed one single witness and refusing to depose anyone, despite the client’s insistence, can the attorney be deemed “prepared” as they say they were? I do not see how that was possible. Do you? Thanks!  

Grace
Baldwin, New York

The Short Answer is “Three Years.” In New York, where you live, the time period to file a lawsuit (which in legal terms is called the “statute of limitations”) for legal malpractice cases is three years. Calculating this time period can be a bit tricky, though, because if the attorney represented the client after he or she committed the malpractice, the time period may be even longer under a legal doctrine called “continuous representation.” Also, if the attorney concealed the malpractice, then the time period can be longer, too.  By the way, in 30 years, I have never once heard of any attorney acting so poorly as yours seems to have acted. What he or she did is not being prepared, even minimally, not by a long shot.

Sorry for your bad experience,
Al Sklover

We offer a Model Letter entitled
“Model Response to Job Offer Letter.”
To obtain a copy, just click here.

Question 4 – Can I apply for unemployment benefits if I was asked to resign? Can I apply for unemployment insurance benefits if I was asked to resign from my job after I filed a lawsuit for harassment and hostile environment, but then dropped it. 

Gail
Sun Valley, Idaho

The Short Answer is “Yes.” Gail, anyone can file for unemployment benefits if he or she has lost a job and feels that it was not his or her own fault. In Idaho, like in every other state, after you submit an unemployment application, the state unemployment authorities will decide if you are eligible; you should not presume you are ineligible. Idaho law, like the law in every other state, says that people are eligible for unemployment even if they have resigned, so long as they left their job for “good cause,” which usually includes harassment and hostility. If you left for those reasons, or because you were asked to resign because you brought a lawsuit for those reasons, in either case it would seem to me you have a very good chance of collecting unemployment benefits. Don’t forget: you have nothing to lose by applying.  

I think you’ll be successful,
Al Sklover

Our Model Letters and Checklists are a
Great “Helping Hand Gift” for a Friend or Loved One
With a Problem or Opportunity at Work. Just click here.

Question 5 – Was I fired or laid off? My employer laid me off on October 8, at which time I was given a separation agreement and 21 days to review it. I was told that, if I agreed with it, I should sign it and return it. On day 13, I reported to HR that I believed I had been the victim of sexual harassment and discrimination. On that same day, I was fired. How could they fire me if I was already laid off? Was I fired or laid off?  

Carrie
Aurora, Colorado

The Short Answer is “Laid Off.” Carrie, the two relevant questions are always these: (1) who made the decision to end the employment relation, and (2) for what reason? In your case, your employer made the decision, and the reason was layoff. You were laid off, and given time to consider signing the separation agreement, but then that time period was shortened. The decision to end the employment relation was made by your employer, and then the time period was shortened. By the way, because of what happened to you, you now seem to have a pretty strong case of retaliation for raising the issues of sexual harassment and discrimination. You might consider speaking with an experienced employment attorney about your legal claims against your former employer.  

If you’d like to obtain a list of five or more experienced employment attorneys in the Denver area, simply [click here.]

Hope that clarifies things,
Al Sklover

Leaving to Get Away from a Problem? Don’t Give Up Your Rights!
Our Model “Involuntary Resignation Letter” is designed for you.
Just click here to obtain a copy.

Question 6 – My husband’s former employer is upset that he has gone to work for a competitor. What should he do? My husband just put in his two week notice of resignation from his sales manager job. His boss very angrily asked him to leave and threatened to sue since he is leaving to work for a competitor. My husband never signed a non-compete. The only thing they have collected is a few email correspondence between him and his new company. He did not share any confidential information. He is stressed out. What should he do? Do they have a case? Also, his previous employer was very verbally abusive., e.g., constant cursing and insulting. Should he counter sue?

Jane
New York, New York

The Short Answer is “Relax and sit tight.” Jane, if your husband did not sign a non-compete, and did not share confidential information, then he has nothing to worry about, with one exception: his abusive former boss might try to send a nasty letter to his new employer. First, there is nothing anyone in the world can do to stop that. Second, I expect your husband’s new boss will not take it seriously. At most, your husband might mention to his new boss that his old boss is very upset about losing such a valuable sales manager. More than that? Quite unlikely; from what you described, the threat to sue was just hot air. I doubt any attorney would take on such a baseless case. Just have your husband sit down, relax, and look forward to – hopefully – working for a boss who does not abuse him, and appreciates him. It’s his old boss’s loss, and his new boss’s good fortune to have him. I expect your husband may be a happier person in the future.

It’s so great to get away from bullies,
Al Sklover

“How You Can Lower Your Odds of Being Laid Off”
Watch our Free YouTube Video
Just click here.

Question 7: Is it legal to interview for new jobs while on FMLA leave? I am on short term disability for back surgery. My FMLA leave is over before I will be permitted to return to my job, which is as a Registered Nurse. I do not like my current job, but I know I have a professional obligation to it, and respect that. I have kept my resume updated, and have noticed many other opportunities out there. Is it “legal” to post my resume and interview for potential jobs while on my leave? Do I have to disclose this info to my current employer, and if I am offered a great opportunity, how do I go about accepting it and reasonably resign from my current employer. Thanks for your anticipated response.

Mary Beth
West Allis, Wisconsin

The Short Answer is “Yes.” There is absolutely nothing illegal or dishonest about seeking new employment – including posting your resume and interviewing – while you are on a Family Medical Leave Act (“FMLA”) leave of absence. While your medical condition may preclude your working right now, it does not preclude your engaging in employment search. You have absolutely no obligation to share with your present employer the fact that you are engaged in a job search. If and when you obtain a more attractive position, it is only then proper to notify your present employer that you have decided that you will not be returning to work when your leave ends, or at an earlier date if you wish. Just be as respectful and professional as your note to me shows you always are.

Good luck in your job search,
Al Sklover

Resigning? We offer a 100-Point Pre-Resignation Checklist.
If you’d like to obtain a copy, just click here.

Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. Questions of over 100 words will not be reviewed. And only one question at a time. If you do submit a question, you agree that Alan’s answers are not legal advice, but only suggestions to consider. Please understand that not all questions can be answered, due to limitations on time and space. Still, we “do our best to do our best.”

Note: Brief Questions are given Priority in Answering

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

© 2012 Alan L. Sklover, All Rights Reserved. Commercial Use Prohibited.

Seven Short Q & A’s on Saturday

Published on February 11th, 2012 by Alan L Sklover

Question 1: When leaving a company, should I sign a non-solicit agreement? Hi, Alan. I work for a consulting firm. I was never asked to sign a non-solicit agreement, either upon joining this firm eight years ago, or since. I am now planning on joining a different company that provides services to the same client I now do work for here. Now my current employer, who I am planning on leaving, wants me to sign a Non-Solicit Agreement which contains a clause that says I would not work for the clients that I worked for here during the last 18 months. Is this a valid clause, and should I sign it?  

J.S.
San Jose, California 

The Short Answer is “Heavens, NO.” A non-solicit agreement is a loss of important employment freedom. Unless you are applying for a new job, or you will lose a job you love, or you are being paid a lot of money, you should NEVER sign one. If you do, that new employer may just not hire you. And, by the way: your description of what you are being asked to sign sounds a lot more like a disguised non-compete than it sounds like a non-solicit. DO NOT sign anything unless (a) it’s been reviewed by an attorney, and (b) it is in your interests to sign it.   

Glad you wrote in before signing,
Al Sklover

To view our free YouTube Video entitled
Unemployment Benefits – The 12 Basics to Know”
Just click here.

Question 2: My employer claims my offer letter had a mistake in it; what can I do? I’ve worked for my employer for three years, and recently transitioned into a new position, with a new signed offer letter. The offer letter indicated four weeks vacation, but now they claim that was a mistake: it should have been only three weeks. What is my recourse, if any?  

R.M.
Baltimore, Maryland

The Short Answer is “Probably little.” R.M, if your offer letter included a specified term of employment, such as two years, then technically your employer would be bound by that offer letter to keep your vacation where it is for that two-year period of time. In that case, you would have leverage to insist that it honor its promises regarding vacation. On the other hand, most offer letters do not guarantee employment for any set period of time, but are “at will,” and so your employer would not be bound to keep your vacation amount set for any period of time, and so, it could change your vacation amount any time it wanted to. Most importantly, though, is that if you’ve been there three years, and have been offered what sounds like a promotion, then you seem to be a valued employee, and that is the best leverage there is. Your calmly telling your employer that the increased vacation was a motivator, and is important to you, that leverage – your feeling that you are being treated fairly – may be your best “recourse.”

Wish I had better news,
Al Sklover

Job Loss might be on the horizon?
Prepare yourself with our “Ultimate Severance Package.”
Just click here.

Question 3 – Can a person be forced to resign from a job if it doesn’t work out?                                                                          

Diana
New Haven, Connecticut

The Short Answer is “No.” No employer can force you to resign. And resigning might prevent you from being entitled to severance, unvested stock and stock options, and even unemployment benefits. Unless there is a good reason for resigning, I almost always recommend against it.                                                                      

Don’t be intimidated,
Al Sklover

We offer a Model Letter entitled
“Model Response to Job Offer Letter.”
To obtain a copy, just click here.

Question 4 – While on FMLA leave can I resign and start work elsewhere? Is it legal for an employee who was granted FMLA leave from work to give two weeks notice to a current job and start working a new job?   

Allison
Chatham, New Hampshire

 The Short Answer is “Yes, but . . . ” The FMLA law does not make anything an employee does illegal; all it does is permit an employee to take an unpaid leave of absence if needed for personal or family medical (or psychological) reasons. It does not require (a) that you return to your job, or (b) that you give notice to your employer when you leave. Those kinds of arrangements are entirely between the employee and the employer. If you intend to be “employed” by both employers during those two weeks, that could be viewed as dishonest or deceptive, and could bring about a claim for you to return any amount of benefits you were provided by your present employer during the two-week period.  

Good luck in your transition,
Al Sklover

Our Model Letters and Checklists are a 
Great “Helping Hand Gift” for a Friend or Loved One
With a Problem or Opportunity at Work. Just click here.

Question 5 – If I haven’t signed a non-compete, and don’t take trade secrets, am I free to open a competing business? After being let go from my previous employment, I am taking my experience and knowledge I learned from that employment and putting it to the test. I only signed an employee handbook that contained the rules around the work place, like lunch breaks, days off, etc. I never signed an agreement not to go out on my own, or compete. What if customers come to me, or call me for a meeting? I don’t have any customer lists. I use the saying “It’s a free country.”

Mike
(City and State Not Specified)

The Short Answer is “You Sure Are!” Mike, welcome to Free Enterprise; let the best man or woman win! So long as you are not violating a non-compete agreement, or taking trade secrets with you, such as a customer list, you are “Free As a Bird!” You can solicit customers of your former employer, and you can answer their inquiries, too. Go for it!! 

Congratulations Times Ten,
Al Sklover

Leaving to Get Away from a Problem? Don’t Give Up Your Rights!
Our Model “Involuntary Resignation Letter” is designed for you.
Just click here to obtain a copy.

 Question 6 – Can I stop my employer from giving away my sales territory? Hi Alan! I work for a company that has no Human Resources Department. I am a traveling saleswoman who has increased sales by double digits each year since 2005. Recently, the U.S. Peace Corps pulled their personnel out of Guatemala and Honduras due to increased violence there. I cancelled my business trip to those two countries for this reason, and explained that to my boss. Now he is threatening to give away my territory to a new salesman. I can prove I have worked the territory all this time via email and skype, and sales have grown great! What can I do to stop him from making such a harsh decision?  

Sandy
Miami, Florida

The Short Answer is “Probably not.” Sandy, your successful sales work in these countries does not seem enough to have convinced your boss to keep you assigned to the territory. Unless you have a written contract that guarantees your employment and exclusive coverage of the territory, there is no way you can “force” him to keep you on it; you do not “own” it. However, you might consider a respectful, detailed memo that better explains your view of your value to the territory and, thus, to your company and boss. Just between you and me: you might also consider speaking with a competitor about working for them, instead. 

Sorry I don’t have better news,
Al Sklover

“How You Can Lower Your Odds of Being Laid Off”
Watch our Free YouTube Video
Just click here.

Question 7: Is it legal to fire employees for participating in the political process? Hi, Alan . . . I just encountered this Facebook group where an anonymous employer is boasting about firing people in Wisconsin who signed a Walker recall petition. Is it legal to fire people for participating in the political process?

J.S.C.
Houston, Texas

The Short Answer is “Yes, everywhere except in a few states.” J.S.C., your question is a really interesting one. As you know, many laws prohibit employers from retaliating against employees who engage in “protected activities,” such as objecting to discrimination, or refusing to engage in illegal behavior. However, other than in a few states, including California and New York, and Washington, D.C., there are no federal or state laws that protect employees from retaliation for engaging in the political process. In Colorado and North Dakota, employees are protected from retaliation for engaging in “lawful activities outside of work,” which would probably protect employees who are politically active, too. In my 30 years of this work, I do not recall having seen a company policy that protects employees who do so, either. You would think that, in this respect, there really “ought to be a law.”  

Thanks for writing in,
Al Sklover

Resigning? We offer a 100-Point Pre-Resignation Checklist.
If you’d like to obtain a copy, just click here.

Got a question? Feel free to submit it for Alan to answer. But please keep it brief and to the point. Questions of over 100 words will not be reviewed. And only one question at a time. If you do submit a question, you agree that Alan’s answers are not legal advice, but only suggestions to consider. Please understand that not all questions can be answered, due to limitations on time and space. Still, we “do our best to do our best.”

Note: Brief Questions are given Priority in Answering

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

© 2012 Alan L. Sklover, All Rights Reserved. Commercial Use Prohibited.


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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