“Do I have any recourse if my job responsibilities, and income, are taken from me without notice?”

Question: Hi, Alan. I’m a psychologist, considered a staff member at a part-time job I’ve had for 13 years at a school for children with learning issues.

About 60% of my job involves doing assessments. When I took over doing these assessments about five years ago from a colleague who left, the school told me that they would mail a letter to parents recommending me to do evaluations of students with learning issues in preparation for college.  The school told me I’d probably get a dozen or so responses from parents, who would pay me directly for my services. This has been so, as I’ve done about 12-14 evaluations per year. I’ve only gotten positive feedback about these evaluations, both from parents and from the school over the years.

Last year a new person was placed in charge of the office that makes these referrals. Over time, I realized that my referrals had decreased, and now I am receiving no referrals. No one ever spoke with me about this, nor has the new person in charge ever introduced herself to me or ever spoken with me. I’ve lost thousands of dollars of business.

I feel that I’ve been fired without anyone ever letting me in on it. I found out “through the grapevine” that she has been referring parents for about the past eight months to a former colleague of hers with whom she worked previously, and that she sent out a letter to parents recently recommending him.

I think that, if she didn’t want to collaborate with me she should have alerted me to this change and prepared me for it. That way, I could have looked for another job and made other plans. In the meantime, until I caught on, I’ve lost thousands of dollars without making plans to work elsewhere. Now I’ll probably have to wait until the next school year to get a new job, and I’ll lose even more money.

Do you think I can quit and ask for severance to make up the money I lost, and if so, how can I go about doing so most persuasively? Thanks so much.

Boulder, Colorado

Answer: Roger, let me tell you how I see your situation, and what I think you might do to make it better.

In a sense, every employee has an employment “agreement,” even if it is not in writing. Each employee reports to work at the same time each day (or night), goes to his or her desk (or station), performs certain duties each and every day, and gets paid a certain amount of money for doing so that is regular, that is, week-in and week-out. Is this “regularity” of work and pay a coincidence, or is it part of an “understanding” about the terms of the employment between the employer and the employee? Obviously, it is the latter. That is, it is a mutual understanding, and each relies on it each day. Said differently, there is an agreement about what the job is, and what the compensation is for that job. So . . . most everyone has an employment agreement, even if it is not in writing. (Are you with me so far? If not, please read over this paragraph again; it can be a bit confusing.)

I see you as having had an employment “agreement”: an agreement with the school about what your job was, and what you were to get paid for it. In your case, I believe that agreement included your being available to do, and then doing, the evaluation referrals, in exchange for which you were entitled to receive monies for your services directly from the parents. They relied on it, and so did you, and it was a long-term course of conduct. 

Let me offer you an analogy: a lease for a restaurant. The landlord has an agreement with the restaurant owner permitting him or her to use the building, with the understanding the restaurant can offer its food to customers, and receive payment from them. In this restaurant example, if the landlord then built a fence so the restaurant customers could not enter the restaurant, would the landlord have violated the lease “agreement?” Sure.

In this same way, I see the new person in charge of the office to have violated your employment agreement with the school, to your detriment. Like building a fence around the restaurant so the restaurant owner could not sell his or her food.

You might say, “But I have nothing in writing.” I would respond that most contracts are not in writing, but rather (a) spoken, and (b) implied from circumstances, such as when you order food in a restaurant: do you sign a letter promising to pay, do you promise to pay the waiter with words, or is it “implied in the circumstances” of your ordering the food after seeing the menu and its prices for different dishes? Obviously, in the restaurant example, your “agreement” to pay is “implied from the circumstances.” In this same way, I believe you had an employment agreement either (a) spoken with School Management, or (b) implied from the circumstances, and that employment agreement included the referrals.

So, you might say, what’s with all this “legal mumbo-jumbo?” It is my way of explaining to you that I think you should first speak with the School Management or Board Members about your “agreement” of many years being violated, and that you would like it to be either (a) reversed, with your being paid what you lost, and getting future referrals, or (b) if not, then to give you some reasonable payment for what you lost so that you do not have to be adversarial, or bring them to court. Most people would call item (b) “severance,” and I would, too. That is how we raise, and usually resolve, claims for severance.

Please, please, please do not quit before you attempt to either (a) fix the situation, or (b) request severance. Quitting squanders most of your leverage to do either (a) or (b). Work to get what you want “from the inside” as long as you can.

(Incidentally, frequent readers of SkloverWorkingWisdom may say to themselves, “But I thought in at-will employment, both employees and employers are free to change the terms of the relation, if they choose to.” That is true, with a big “but”: however, an employer cannot change the terms of an employment relation without notice to the employee. Let me give you the best illustration: Your employer can say to you, “Starting next week, I am only going to pay you minimum wage.” You would then be free to quit or accept minimum wage. However, an employer cannot say, “Thanks for working this past week. Without telling you, I changed your compensation to minimum wage going back to Monday. That is all you are getting paid today for the entire last week.” See the difference: Without “notice” of a change in terms of the employment relation, the “changed terms” constitute a broken promise, or as they say in court, “a breach of contract.”)

First, though, I believe you owe it to yourself to try to gain back the positive and rewarding working relationship you had with the school; though you may feel mistreated. Your apparent lack of communication with both the new person managing the office, and the School Management, about your feelings may, to some degree, be responsible for your predicament. 

So, give “improvement” in the relation a try first. If that does not work, register a “claim” with the School Management or Board, and suggest a severance would be a reasonable resolution to that “claim.” 

Great question. Sorry I wrote so much, but there was a lot that needed to be “said.”

Truly hope you find this helpful. And truly hope you’ll tell others about our blog.

Best, Al Sklover

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