Published on April 5th, 2016 by Alan L. Sklover
“One of the secrets of life
is to make stepping stones out of stumbling blocks.”
– Jack Penn
ACTUAL CASE HISTORIES: A very commonly asked question is this: “I have followed your suggestions, but it has not yet worked . . . What do I do now?”
The writer usually explains that her email memo to management “pushing back” against a dishonest performance improvement plan (“PIP”) did not get her what she wanted. Or, his request for better terms of severance achieved only minimal results. Or, perhaps, her attempt to get a waiver for a non-compete agreement received no response. Or maybe, even, his complaint of discrimination was essentially ignored.
There are five simple “next steps” available in each of those problem situations, and others, too, that remain unsolved despite your best efforts. While choosing which “next step” among them is the best one for you, surely one or more of them is the wisest one for you. And, in fact, you can try all five if you wish.
What needs to be kept in mind is that there is no problem without a solution. And many different approaches can be tried to solve a problem. It might even be your second, third or fourth attempt to solve a problem that turns out to be the most effective.
LESSON TO LEARN: Maybe you did not immediately get the results you wanted to get when asking for removal of a negative reference from your HR file. Or maybe you were turned down in your first request for an investigation of your complaint of harassment. Or, maybe, too, your repeated complaints of unsafe working conditions were simply ignored. In each of these instances – and many others, too – you would likely be frustrated, demoralized, perhaps even angry.
As the simple saying goes, “Don’t get angry . . . get even.” Or, as we are reminded, “If at first you don’t succeed, try, try again.” Or, perhaps, bear in mind the adage, “There are more ways than one to skin a cat.” (My apologies to all of you cat lovers out there.) Don’t give up. Don’t get frustrated. Just keep going.
WHAT YOU CAN DO: Here are your five alternative next paths available to you. Coincidentally, each path forward ends with the letters “ate,” as do the words “navigate” and “negotiate.” Might it be pure coincidence?:
1. “Elevate” – That is, Go One Step, Two Steps or Three Steps Higher. Let’s say you sent your memo responding to a dishonest performance review to your boss’s boss, the Vice President of Logistics, and that your efforts have not resulted in what you are seeking: the modification or removal of the dishonest performance review from your Human Resources file. What should you do now?
The next step that we almost always recommend is that you “elevate” your concern and direct your request one, two or three steps higher, perhaps to the Senior Vice President of Logistics, the Divisional Executive Vice President, or even the Chief Operating Officer.
Should you go all the way to “the top?” In general, if you wish to keep your job, your next step should usually be just one or two next steps “up the ladder,” and not all the way to the CEO or Board of Directors. Those people are targets only of “last ditch” attempts to resolve, to be used only as last resort. On the other hand, if the problem you now face is truly “the last straw” for you, or you think the dishonest performance review may soon result in your termination, then you may have little, if anything, to lose by going all the way to those at “the top.”
Just in case your first attempt to resolve a Performance Improvement Plan (“PIP”) doesn’t work, we offer a “Model Second Response to a PIP, If First Doesn’t Work.” It shows you “What to Say, and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly!
2. “Escalate” – That is, Bring in Legal Counsel. Let’s say you are being severely “beaten down” by a bully boss, even feel fearful of a physical altercation, but your filed complaints are being all but ignored. It may be time to bring a lawyer into the picture. HOWEVER, I am very much a believer in “Keep the lawyers out of the picture (a) whenever, (b) wherever, and (c) for so long as you can.”
Bringing a lawyer into the picture to address a problem at work is similar to bringing a lawyer into the picture to address a problem with your marriage: it rarely smooths things over, and is not very conducive to good relations after that.
That said, there may be times in employment, as there may be times in marriage, when it is time to do just that. But, just like in marriage, it is really only when you have decided the relation is probably over and done, for good, that lawyers should be brought in.
What I counsel my clients is this: “Once I get into the picture, your employer will inevitably bring their lawyer into the picture, and no matter what the lawyers’ genders may be, we often have a breakdown in civility, what I call “a testosterone tournament.” Far too often, the lawyers seem to feel a need to “show their teeth,” have a “face off,” demonstrate how mean, intemperate and other nasty things they can be. And, too, one must not forget for a moment that most lawyers get paid more the more they fight with each other.
Before bringing a lawyer into the picture, it might be wise to take even that last step noted above: appeal to the CEO and/or the Board of Directors, but bear in mind such appeals are often the last “direct” appeals you may be able to make, before calling in your lawyer.
Always use an Experienced Employment Attorney familiar with your area of concern. Use our Model Letter to Attorney seeking his/her Experience, Billing and Related Info. Just [click here.] Delivered by Email – Instantly! Shows you “What to Ask, and How to Ask It.”™
3. “Extricate” – That is, Get Yourself Out, But Wisely. There are circumstances at work that are just too demoralizing, destructive to health and emotions, or just too darn negative to make it sensible to remain in the employment relation. In everything we do, there are times it is just best to “walk away,” rather than continue to suffer for no good reason. Thus, it is sometimes just time to “get yourself out of there.” BUT, a simple resignation is often not the wisest way to go:
a. Family Medical Leave: Before you leave your job permanently due to a difficult circumstance, it may be wise to consider taking a temporary “FMLA” leave of absence, if you are eligible. This can provide you with up to 12 weeks off, unpaid time, while still employed, in which you may try to find a new job, while your benefits continue. It gets you “away from” a bad situation, but still “on payroll and officially employed,” so that you have benefits and don’t need to explain to interviewers why you left your job. Instead, you only need to say a family member is ill, and needs your attention temporarily. And, many employers permit employees to use their accrued sick time and vacation time to get at least partially paid. (For more information about FMLA, review our blogpost entitled “FMLA – Great Tool to Extend Your Employment. Just [ click here ]).
Interested? Use our Model Memo Requesting FMLA Information, Forms and Procedures from Human Resources. It shows you “What to Say and How to Say It”™ and makes a permanent record of your request. Just [click here.] Delivered Instantly By Email to Your Printer.
b. Involuntary Resignation: This is a concept that we have created that incorporates resigning, but in doing so both (i) keeping open your chances of getting severance, and (ii) quite possibly enabling you to collect Unemployment Benefits. To read more about involuntary resignation, just [ click here ].
If interested, we offer a “Model Involuntary Resignation” letter that you can use. To obtain a copy just [click here.] “What to Say and How to Say It”™ 24 Hours a Day. Delivered by Email – Instantly!
4. “Litigate” – That is, Sue. This is NEVER your preferred route. It may seem tempting, it may give you an immediate sense of revenge, but it is NEVER the best next step in response to a difficult or impossible situation at work. Litigation of employment issues is a step to be taken only as a last resort, and only after you have calmly, carefully and comprehensively thought out what to do with a distinctly sober analysis.
Militating against litigation is (a) its cost, (b) its likely duration being a number of years, (c) its likely negative effects on future employability, (d) its distractions, and (e) its highly unpredictable likelihood of success. Unfortunately, most lawyers like litigation, and many will wrongly steer you in that direction, as it is in their financial interests.
On the positive side of using litigation as a tool for correcting wrong, improper or illegal behavior, litigation is one option that does sometimes work, and every once in a while, with spectacularly positive results. Although the “headline cases” are few and far between.
One thing to always keep in mind: if you are going to sue, it may be wise to do so only after you have obtained a new job, and are comfortable in it. First, it will not be an impediment to getting that new job. Second, having a new job will surely give you a difference perspective as to the true necessity of suing. Third, if you do not get a new job soon, the “value” of your case actually increases, which will always make lawyers more interested in representing you, as well.
5. “Capitulate” – That is, Just “Let It Be.” There is just no doubt about it: there are certain times in life that the best way to deal with a problem situation is to simply “walk away” from it, no matter how unfair, and galling it may be. Sadly, I have seen many clients permit their workplace struggles to (a) consume them emotionally, (b) deteriorate their health, (c) drain them financially, and even (d) do significant harm to family relations. In over 33 years of law practice, I don’t think I have seen a single workplace situation that was truly worth pursuing at the price of damaging health, emotions, finances and family.
In my own life I have faced several such situations. Although it can be so very difficult to simply “Let It Be,” looking back at those situations, having “Let It Be” for the sake of my health, my sanity, my finances and – most important to me – my family, I know I did the right thing.
Help Yourself With
|PIP 1:||Model Response to Receiving a PIP|
|PIP 2:||Model Second Response if Your First Response Does Not Work|
|PIP 3:||152- Point Step-by-Step Guide and Checklist for a PIP|
|PIP 4:||3 Memos Seeking Feedback of Clients, Customers, Colleagues for Use in PIP Pushback|
|PIP 5:||Final Memo to Delay PIP Conclusion to Continue Job Search|
|PIP 6:||After Successful PIP Pushback, Suggesting Positive Next Steps|
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. Knowing the several alternative paths available to you if your first path does not lead directly to success is one way of navigating and negotiations wisely.
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.” Making sure you are taking advantage of all employment benefits and perquisites available to you is one way to do just that. Learning the “tricks of the trade” is 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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