Garden Leave . . . Is Negotiable

“Logic will get you from A to B.
Imagination will take you everywhere.”

– Albert Einstein

ACTUAL CASE HISTORIES: A “Garden Leave” obligation is a promise that you will remain on your job, after resigning, for 30, 60, 90 or more days prior to departing during which (a) you may be required to work in the office, (b) you may be told to remain at home “tending your garden,” (c) in either case, while you are subject to termination at any time, at the discretion of employer.

For perhaps 20 years I have seen “Garden Leave” provisions in offer letters, employment contracts, bonus agreements, retention agreements, and almost every other kind of workplace agreement. Many clients chafe at these restrictions, as they both delay their moving on to hopefully “greener pastures,” and frustrate the wishes and plans of their would-be next employers.

A few years ago I began to suggest to clients facing Garden Leave restrictions that they attempt to negotiate to reduce the duration of their Garden Leave’s restriction. Increasingly, clients who try to do so are meeting with success. All the time? No. But with increasing frequency? Yes.

I now suggest to every client who is planning to resign from a job, but facing a long Garden Leave restriction, that they attempt to reduce their Garden Leave period through negotiation. Why not? There’s little to lose and so much to gain.

LESSON TO LEARN: With few exceptions, everything in life – and that includes work life – is negotiable. And by negotiation, I mean motivating your manager or employer to view what your seek to be in their interests as well as your own.

The same first principle that governs any negotiation – that a person will likely pursue what that person perceives to be in his or her best interests – governs this negotiation, as well. If you can change the way a person perceives her or his own interests, then you can motivate her or him to do just what you want them to do. Some people say, “Oh, gee, that’s just Sales 101 . . . that is, if you buy a certain toothpaste, you will have a better social life. ” Well, what applies to toothpaste applies to Garden Leave provisions, too.

And there’s no downside to making any request, so long as you present it with “The Three R’s”: (1) Be Respectful. (2) Be Reasonable, and most importantly, (3) accompany your request with a compelling Rationale.

As I have many times said, “You can lead a horse to water, but you cannot make it drink . . . but if you put the right “salt” into its mouth, it will feel thirsty, and, on its own, it will look for a stream.” In the Garden Leave context, all you have to do is decide who is the right “horse,” and what is the right “salt.”

WHAT YOU CAN DO: When planning to resign, if you are subject to a Garden Leave obligation, you should consider requesting that its length be reduced. Here are some thoughts that might help you do so:

1. My view is that a request for a reduction in Garden Leave should be submitted the day after you resign to your manager, separately from your resignation. It is my firmly held view that employees should resign with respect and grace, in person, to their manager, if possible. That in person resignation should be followed up, later that day or the next day with an email that “makes a record” of what was said in person.

The next day, or the day after that, is when you should submit your request for a shorter Garden Leave period in a separate and distinct second email, to a “decision-maker,” as discussed below.

One of our most popular “Ultimate Packages” of forms, letters and checklists is entitled “Ultimate Resignation Package” which consists of two Model Resignation Letters, a Model Involuntary Resignation Letter, a Memo to HR before your Exit Interview, and our 100-Point Pre-Resignation Checklist. To obtain a complete set, at a significant discount, just [click here.] It shows “What to Say and How to Say It.”™ Delivered by Email – Instantly!

2. The best way to present your request for a shorter Garden Leave is (a) in an email (b) addressed to a “decision maker,” that is, someone who has the authority to recommend it to Human Resources. Almost always, I suggest you do NOT address your request to anyone in Human Resources, or anyone in the Legal Department, because their job is to simply say, “We can’t do that.” Rather, it should be transmitted to someone who can, and may be “motivated” to, make the decision you seek, here it being the reduction of the length of your Garden Leave. That person may or may not be your manager. If you do motivate that person, they will instruct either HR or Legal to “take care of this.”

3. Your overall objective in this “negotiation” is the same as it is in most negotiations: to convince your “decision maker” that it is in his or her greater self-interest to grant your request. In this way, negotiation is not best viewed as a convincing argument that you are “right,” of that it is “fair,” and it is not a question of logic, in which you prevail. Instead, it is your task to explain why it will likely be more rewarding and/or less risky to your “negotiation partner” if she or he does not agree to grant your request.

4. “Points of Leverage” in this context are usually things you might do, or might not do, for your decision maker during or after your Garden Leave period. Leverage in any situation arises from the facts, events, people and circumstances around you. As such, it is entirely unique to each person and situation. There is simply no “one leverage point that fits all.”

That said, in this circumstance your “decision maker” may be motivated to shorten your Garden Leave by such things as: (a) your availability to help select and train your replacement; (b) your being amenable to signing a release of claims; (c) your agreement to sign a new non-compete agreement; (d) your agreement to provide limited continuing cooperation even after your Garden Leave is over, or even (e) your agreement to provide endorsements and/or recommendations to future prospective customers.

5. The suggested “trade” is essentially that, in this transition, you will agree to do certain things for your “decision maker” that you are not committed to do, if he or she will agree to reduce the length of your Garden Leave. As the Yiddish saying goes, “God gave us two hands . . . one to give and one to receive.” Or, as the English proverb reminds us, “One hand washes the other.”

No threats. No promises. No requests for favors. No expense or cost. No references to “fairness” . . . just a suggestion that “We will both do better if we work together for out mutual benefit.”

6. What’s there to lose by asking? Nothing. I have never once seen a request made to a manager (or other decision maker at work) result in any sort of risk or harm where the request (a) was made Respectfully, (b) was Reasonable in what was requested, and (c) was accompanied by a compelling Rationale.

One thing to be prepared for, and ready to respond to, is your manager’s request to know where you will be working in your next job, what you will be doing, and for what kind of customers or clients. You may not want to divulge that information, and, more importantly, your future employer may not want you to do so, either. Be prepared to respond to these questions. It is something that requires some forethought, and perhaps discussion with your next employer, before responding.

7. Might it seem awkward to make a “friendly suggestion” when your managers may be feeling that, by your resignation, they were rejected, betrayed, or treated unfairly? The analogy I often share is to a marital divorce. Is it possible to say to a spouse or partner, “I am leaving . . . can we do this on mutually beneficial terms?” Sure you can, and sure you should. And, sure, you have some things you would like to take with you as you head out the door. But you should not let a sense of “awkwardness” or fear of failure put a halt to asking politely for what might be best for you, and the other person, too. Because moving on to a “better place” is the goal, not even suggesting what I call “a dignified divorce” would be the worst shame of all.

Facing a “Garden Leave“? Why not try to Reduce Its Length? We offer a “Memo to Request a Shorter Garden Leave,” with 10 Great Possible Leverage Points.” To obtain your copy, just [click here.] Delivered by Email – Instantly!

In Summary . . .

If you are planning to resign, and face a Garden Leave when you do, do not presume you cannot negotiate its duration. With increasing frequency, and increasing success, employees are doing just that. Like any negotiation, “points of leverage” need to be identified, and then transmitted with respect and dignity, with a focus on how it may be advantageous to the “decision maker” you approach. More than anything, don’t fear trying this, for there is little, if anything, to lose, and so much to gain.

P.S.: If you would like to speak directly about this or other subjects, Mr. Sklover is available for 30-minute, 60-minute, or 120-minute telephone consultations, just [click here.] Evenings and weekends can often be accommodated.

SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. For those planning to resign, trying to negotiate its duration downward is the essence of this wise “navigation and negotiation.”

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

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

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

Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.

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