Published on October 13th, 2012 by Alan L Sklover
Question: Hello. I was laid off from work two weeks ago just about a year into working with my present employer. I had a contract, and was entitled to a week’s notice, and that is what I was paid.
However, my contract also included a yearly bonus which I was not paid. I am wondering whether I could request this from my employer for the period I have worked with them before the sudden job termination.
Please, can you advise?
Answer: Dear Tayo: As indicated below, what your contract says, what it does not say, and how it says or does not say anything about a bonus will likely determine whether you are entitled to a partial or pro-rata bonus for the time you served your employer. And, as indicated below, you can always ask for the partial or pro-rata bonus. So long as you ask the right way, there is no downside to asking. Here’s the story:
1. Your first and most important focus needs to be on the exact words of your contract: do they speak to the issue of a bonus for you at this time? Whenever a written contract exists, it is the words and phrases of that contract that are looked to first and foremost to determine what may be the rights of the parties to the contract. Every word, every phrase and even every punctuation mark must be scrutinized.
You have written that your contract “also included a yearly bonus,” so look at those words. Does it say “guaranteed?” Does it say “will be paid?” Does it say “will be eligible?” Does it say “target bonus?” Does it say “a bonus purely at the Company’s sole discretion?” Those words and phrases are crucial to determining your entitlement or non-entitlement to a partial bonus at this time.
If you would like to obtain our Model Memo for Requesting a Bonus – with 12 Good Reasons, just [click here.] Shows “What to Say and How to Say It.”™ Delivered by Email – Instantly!
2. If the contract does not answer the question regarding partial or pro-rata bonus, but is either vague or does not address when you will be deemed to have earned the bonus, then we can look at (a) facts, (b) events, and (c) circumstances outside “the four corners of the agreement.” There is no such thing as an agreement or contract that covers all issues or all issues with clarity. When a subject is not addressed, or it is not addressed with clarity, we can then look for an answer to other things, including (a) oral promises, (b) other documents, such as letters and emails, (c) previous conduct, especially a repeated course of conduct, (d) company policies and employee handbooks, and even (e) common practices and customs in the industry.
3. One particular circumstance that Judges, juries and arbitrators do not like is when employees are laid off just days or weeks before their bonus is earned, where it seems by the questionable timing that this is an intentional scheme to deny what has been earned. Imagine, if you would, a restaurant where a full meal costs $39.95. Imagine, further, that a customer eats (a) the appetizer, (b) the soup, (c) the bread, (d) the entrée, and (e) the dessert, but then complains that (f) the coffee was bitter, and for this reason refuses to pay the $39.95 – or any of the full-meal price – because they did not get “the entire meal.”
If you were on the jury hearing this case, would you agree that the customer owes nothing, or would you think they owe at least a good part of the $39.95? That is how people view employers who “ate the whole meal” but refused to “pay any of the price on the menu.”
4. If your contract says you are not entitled to the full bonus, or any of it, or is unclear or silent on that issue, you can always ask for it, or part of it, so long as you ask in the right way. I am a big believer in the saying “If you want it, you must ask for it.” I encourage you to request a partial or pro-rata bonus, based on any words to that effect in your contract, and based on the fact that each and every day you worked for the past year you had that year-end bonus in mind, and you counted on that assurance you would receive it.
There is no downside to make a request, so long as it has within it “The Three R’s”: (i) it is communicated with respect, (ii) it is reasonable in amount, and (iii) you accompany it with a rationale about why it makes sense. Who knows . . . you just may be positively surprised.
Tayo, thanks for writing in from the fabulous city of London. If this has been helpful, I hope you will consider recommending our SkloverWorkingWisdom blogsite to your family, friends and colleagues who work, or who want to work.
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