“A secret spoken finds wings.”
– Robert Jordan
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ACTUAL CASE HISTORIES: At least once a week, we receive a call from an employee seeking counsel on moving from one job to another. I always advise them to “Gather together for review their offer letter, employment agreement, stock option plan, bonus agreement, and the like” that they might have signed. This is because, transitioning employees usually fail to appreciate how much a successful transition requires a carefully planned departure.
If you are considering a job transition, you will need to know what you may be owed by your present employer and if you may lose it, and perhaps more importantly, what restrictions you may owe your present employer. When might your bonus be paid, health insurance be cancelled, and stock awards vest? How long is the “garden leave” period you are agreed to, and have you a non-competition or non-solicitation obligation that might prevent your taking that great new job you have been offered?
It is oh-so-common the caller says, “I don’t have a copy of those documents, and I am concerned that if I ask my employer, they will know I am looking elsewhere. What can we do?”
The answer I give is this: “You have to do your best, because any document we don’t carefully review could derail your entire transition, could get you into a lawsuit, and result in significant career damage and financial loss.”
These days, most employers require their job applicants to sign a statement that says something like this: “I promise I have not signed any document that might delay or limit my performing my duties for my new employer.” What if you aren’t sure? More and more, employers insist that their own lawyers review your existing work documents. What if you can’t provide them?
LESSON TO LEARN: Our clients’ experiences over the years shows us that the risk in asking HR for work-related document(s) is usually much smaller than is the risk in making a job transition not knowing what risks lie in your path due to your acting without knowing what those documents say.
Invariably, we counsel our clients that in almost all situations, the very best thing they can do is, simply, to do their best to make a request for the needed document(s) (a) to HR or another appropriate agency or department, (b) in a manner that suggests a good reason for the request –other than to take a new job elsewhere –, and (c) notes that, for important legal reasons, the request must be kept confidential.
WHAT YOU CAN DO: Consider these eight tips, ideas and suggestions:
1. There’s greater risk in not reviewing a document than there is in asking HR for a copy of it. As noted above, it is quite rare for a request for a copy of a work-related document to get to the ears of an employee’s Manager and arouse suspicions that an interview process may be underway. On the other hand, it is more common than you’d think that not knowing what is in your employment agreement or stock option award agreement ends up causing difficulty, delay, or loss in moving to a new employer, or the perception that you’ve been dishonest in answering interviewers’ questions. A bad start to a new work relation is never a good thing.
2. A head’s up: If an employer is seriously interested in hiring you, they may want their own lawyer to review your existing employment agreement, non-compete agreement, stock option plan, or other workplace document. This is especially the case where (a) you have signed a non-compete agreement, (b) you are asking to be reimbursed for your “losses” in leaving behind unvested equity awards, etc., (c) you have signed a Retention Agreement, or other agreements by which you may have agreed to restrict your future activities. This is an important second reason to have your documents available.
3. As with most important communications, it should be made by email. We always preach, teach, and beseech our clients to always make a record of important communications for future reference. The easiest, best and most effective way to do that is in an email, with either a “bcc” to your personal email address, or printing out a copy and taking it home with you. The opportunity for clarity and certainty in what is being communicated, and what is the request, is greatest in writing, and especially in an email.
Looking for a New Job? We offer a 152-Point Master Checklist of Employment Negotiation Items to help you make sure you have not (a) forgotten to ask for anything, (b) failed to raise any issues, and (c) that your interests are protected in your offer letter and/or employment contract. To obtain a copy, just [click here.] Delivered by Email – Instantly!
4. Every request to HR for a copy of a document should include a very clear admonition that the request, and the basis for the request, should be kept entirely confidential, as a matter of law. The very best admonition to keep something confidential is based on your sharing some degree of health concern, without needing to get specific, and insisting on it – and your entire request – being kept totally confidential pursuant to the Federal Law entitled The Health Insurance Portability and Accountability Act, commonly known as “HIPAA,”) which imposes strict privacy obligations on employers who come upon employee health information.
5. What reasons should you present to HR to justify your request for copies of documents? The ones we have seen our clients use successfully are (i) medical issues that have recently arisen that have ramifications to (ii) your marital, family or relational circumstances or a pre-nuptial agreement, (iii) documents that may need to be submitted to regarding a court matter, (iv) your or your life partner’s estate planning, and/or (v) tax planning. Just mentioning the word “medical” and that state and federal laws require that medical information must be kept confidential may well serve to instill a sense of deep concern in the recipient of your request.
Why should a concern about health lead to a request for documents related to employment, benefits and related financial matters? The simple answer is “Why wouldn’t it?” Whether or not you are the sole breadwinner in your family, or even the primary or secondary breadwinner, illness can very easily and quickly lead to financial difficulties, if not disaster.
6. In either a “Thank You” note, or a follow-up request to HR if that becomes necessary, once again mention your or your loved one’s “health concern” and the legal requirement of strict confidentiality. On this point, it cannot hurt to remind the recipient of your request, again and again, that the law requires your request, and the information noted in it, must be held in the strictest of confidence. So, in each communication to him or her, do mention it.
7. Is it possible that your Manager becomes aware of your request, and confronts you about it? In many years of our clients using this method to obtain copies of work documents, I do not recall this happening one single time. If your Manager does bring the subject up, the easiest thing would be to just repeat what is in your memo: (1) health concern of your own or a loved one, (2) makes it necessary to share these documents with others, such as estate planners and financial advisors, and (3) it is a highly sensitive and confidential matter, so you’d really rather not discuss it. You might also mention that you are disappointed that HR has violated the law that requires confidentiality of these things, and let it go at that.
8. To assist those who are not comfortable with writing a “document request memo” to HR by themselves, we offer a Model Memo Requesting a Work Document from HR. It includes seven different reasons for asking, and a list of those documents that you might ask for, that includes information on life and disability insurance coverages. Many clients have asked us for just such a sample, and so we now offer it for purchase to all for a reasonable fee. If interested, see below.
In Summary . . .
Moving from one job to another is just one of the several circumstances in which you may need a copy of a work-related document, the two most common of which are (i) employment agreements or offer letters, and (ii) stock and stock option award letters. The risks of not reviewing such documents cannot be overstated. And, in our clients’ experiences, the risk of asking for a copy from the appropriate person or department at work are often without foundation. When work documents are requested, if the request is done carefully and thoughtfully, whatever risk there may be that a Manager may learn about it, that risk can be minimized, if you do so carefully and thoughtfully.
P.S.: Need to Review a Work Document for an Interview, or Other Reason? Can’t find it? Fear your Manager might find out You’re interviewing? We offer our Model Memo to HR Requesting Copies of Workplace Documents. Contains good reasons for your request, and good reasons why Your Request Needs to Remain Confidential. It shows you “What to Say and How to Say It”™ Just [click here.] Delivered Instantly By Email to Your Printer.
P.P.S.: If you would like to speak directly about this or other subjects, I am 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. Being careful about what you sign is a sure step to do just that.
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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