Published on July 2nd, 2014 by Alan L Sklover
“Honesty is telling the truth to other people.
Integrity is telling the truth to yourself.”
– Spencer Johnson
ACTUAL “CASE HISTORIES”: Maritza, 48, felt safe and secure in her position as a software developer. She had been with her large corporate employer for 9 years, had risen to a trusted management position, and supervised a team of junior developers she had hired and trained, and over time molded into a very productive and collaborative working group.
After a period of disappointing sales, the Board – comprised of representatives of large venture capital firms – called for cost-cutting measures, company-wide. Without notice, Maritza was let go and offered 18 weeks of salary as severance. She didn’t think the offer was a bad offer, but was concerned about one thing: a non-competition agreement she had signed 5 years earlier. Her fear was that it would make her unemployable in the only field she knew.
So, Maritza wrote the company’s Senior Management and asked for a waiver of her non-compete agreement if she went to work for a small company. In a rather nasty letter from her employer’s lawyer, in which she was warned of a terrible lawsuit if she dared work for any competitor, her request was declined.
After 14-weeks of job search, just weeks before her severance was to expire, Maritza was offered a good job with a small software production firm. The job offer, however, was subject to her getting a written waiver or release from her non-compete agreement. Maritza felt very much “against the ropes,” so she contacted us for a telephone consultation.
–At our suggestion, this time Maritza did not write to the CEO, but instead wrote directly to her former employer’s Board Members.
–At our suggestion, this time Maritza did not make a request for a waiver of the non-compete agreement she had signed, but instead insisted on being given a waiver letter.
–At our suggestion, this time Maritza did not send just a letter, but she also sent a Sworn Affidavit which detailed facts, events and circumstances that showed those Board Members that no Court would enforce her non-compete agreement. Those detailed facts, events and circumstances included among them that (i) she was a single mother without any other source of support for her children, (ii) she was laid off, and did not resign or commit “cause” for firing, (iii) she had no secrets or confidential information about her former employer, (iv) she had never engaged in or been accused of, any kind of misconduct, and (v) she had politely requested a reasonable waiver so she could work for a small software firm, but was instead warned of a devastating lawsuit if she did so.
Maritza’s Affidavit told a compelling story, without interruption or “filtering” by anyone, most of all the company’s lawyer.
This time, her employer provided her with a written waiver and release from her non-compete obligations. To Maritza’s amusement, it was sent by the very same lawyer who had earlier threatened her. We were not at all surprised by the difference in response.
Why the different response (a) on the one hand, to a letter, and (b) on the other hand, to a Sworn Affidavit?
LESSON TO LEARN:An Affidavit is simply: (a) a statement of facts, (b) which you have sworn are true, (c) under penalty of perjury if you lied, (d) signed in front of a Notary Public.
An Affidavit is different from a letter in that (i) the statements in an Affidavit carry more weight with attorneys, Judges and Juries, because they are made “under oath,” (ii) an Affidavit may be admitted into Court as evidence, (iii) an Affidavit, being sworn to before a Notary Public, shows strongly that the “Affiant” (that would be you, the person who signs the Affidavit) is ready to testify to these facts, (iv) an Affidavit represents to many people a heightened level of tenacity, focus, and intention to persevere, (v) an Affidavit is quite unexpected in the negotiation process, and thus unsettling to employers and their lawyers, and (vi) finally, an Affidavit suggests you may have spoken with an Attorney.
Affidavits represent an opportunity to get your side of the “story” to others, in a very convincing form.
Affidavits can be used in any kind of workplace dispute to your advantage, including among others, matters of (a) discrimination, (b) harassment, (c) non-competition disputes, (d) issues involving performance reviews, (e) defending oneself if alleged to have engaged in misconduct, (f) retaliation by managers, and (g) whistle-blowing.
In my experience, the use of Affidavits in workplace negotiations strongly encourages settlement by employers before, and instead of, litigation, arbitration or other adversarial proceedings. In matters of importance to you, consider submission of a sworn Affidavit instead of a letter, and as a supplement to a filed complaint or objection.
WHAT YOU CAN DO: In searching for effective ways to reach resolution of workplace issues, without adversary proceedings such as litigation and arbitration, consider the use of Affidavits in a variety of contexts, especially those in which “what happened” is not agreed upon. Here are six tips to assist you if you do so:
1. Use the “usual Affidavit format.” A Sworn Affidavit is usually presented in a certain format that attorneys and Judges are used to seeing. While other forms would not be forbidden, or be ineffective, using different forms than the “usual” form might confuse those who commonly review them – especially judges and attorneys – and, thus would be viewed as suspect by them.
The usual Affidavit form requires (a) an initial confirmation that you understand that it would be a crime to intentionally lie in a sworn affidavit, (b) numbered paragraphs, (c) one statement in each paragraph, and (d) a Notary Public’s signing, as well.
A very simple common form of Affidavit, to be used as a model, may be obtained from our Model Letter and Memo blog section by [clicking here.]
2. Affidavits must be as accurate as humanly possible: You must very carefully review each detail of each statement in a sworn Affidavit, because if an employer can show that a statement made in a sworn Affidavit is materially false, or if it seems it should have been known to be false, then a dark shadow is cast upon the Affiant’s credibility in anything else he or she says or writes.
Do slight mistakes and unintended errors find themselves into Affidavits? Sure they do; no one is perfect. I have seen errors such as “January 3, 2012” written instead of “January 3, 2013,” and the like, many times. However, if you say “Bob Jones hit me” and Bob Jones died two months before the alleged assault by him, you have a real problem on your hands.
If you discover an error in an Affidavit you have previously submitted to an employer, at your earliest possible opportunity, simply prepare and send a corrected Affidavit, with the notation “Corrected Affidavit” at top.
3. That said, it is fine to use “hedging words” in Affidavits: While accuracy is important in an Affidavit, absolute certainty is not. In other words, it is fine to write “To my best recollection” if your memory is not certain about something you have written. It is also fine to write “On or about January 15, 2017” if you are not certain on exactly which day an event took place. The same holds true for including words such as “In my view,” “From my vantage point, it looked as if,” “Based on the information available to me,” and the like.
Use of “hedging” words actually adds some credibility to what is set forth in an Affidavit because it shows concern about accuracy and care in choice of words.
4. Affidavits must be signed in front of a Notary Public: Affidavits must be signed in front of a Notary Public, not signed at some previous time and then brought to a Notary Public. The Notary Public must himself or herself sign, date and stamp the Affidavit. An Affidavit signed outside the presence of a Notary Public may be both nullified, and considered suggestive of dishonesty, bad faith, and even criminal intent.
Above the Notary Public’s signature you will see these words or words quite similar to them: “Sworn to before me this 13th day of 2015.” That means that on that day (a) you personally appeared before the Notary Public, (b) you swore that what was written in the Affidavit was true, and (c) you signed the Affidavit in the presence of the Notary Public5.
5. The best Affidavits “tell the story”: The purpose of an Affidavit is to convey your “side” of the story in a very convincing fashion. For this reason, I suggest that (a) you number the statements in your Affidavit, thus permitting people to refer back to specific statements, (b) that you lay out your story chronologically, because that is how people best “follow” an account of events, (c) and, too, Affidavits should appear factual, not angry or argumentative, or intended to convince, although that is their underlying purpose.
6. Do not be surprised if some attorneys tell you that the use of an Affidavit is unwise: It would not be surprising to me if you heard from attorneys that you speak with that use of an Affidavit is an unwise thing to do. The usual reasons include these: (a) “Doing so ‘locks you in.’ It limits your ability to change your mind later.” (b) “You don’t want the other side to know what you know, and what you are unsure of, and what you don’t know.” (c) “Let’s make them work to get your side of the story out of you. To give them your side now makes it easy for them.” (d) “The other side is not giving you an Affidavit, so why should you give one to them?”
Notice, if you will, that these arguments all seek a stronger position in litigation. Responding to each reason above, I would say: (a) If the truth is the truth, it is the truth; why would someone want to later give a different version? (b) If you seek to resolve an issue – without litigation – why do you have any concern about sharing what you know, if that will help you resolve the matter without litigation? (c) Making the other side “work” really means, “Let’s go to litigation.” (d) The “other side” is a company, which has more money to spend on litigation, and none of the fear you have that litigation might hurt your career, so why expect them to give an Affidavit?
After more than 30 years as an attorney, I truly believe that (i) most lawyers want litigation to take place because it is in their own financial interests, (ii) most attorneys have never had two minutes of training or education in negotiation, and (iii) most attorneys think their way of doing things is the only way; all other ways are foolish, unwise, or ill-informed.
I do not mean to criticize all attorneys. And I don’t mean to suggest you should ignore your attorney’s advice or counsel. What I do mean to suggest is that you should carefully examine any advice anyone gives you, and don’t hesitate to think for yourself, and share your thoughts and concerns. My own experience is that Affidavits are wise, effective and powerful in resolving workplace issues, and at the least should be considered.
Using Sworn Affidavits to resolve workplace disputes is quite often a wise thing to do. These six tips in using them should help you in deciding whether to do so, and provide some assistance should you pursue that path.
By consciously, mindfully and thoughtfully dealing with the resolution of a workplace issue or dispute, you are doing all that you can do to ensure a successful outcome, to everyone’s betterment. That’s the goal we always strive for, and that’s the goal that best serves us all. Welcome to SkloverWorkingWisdom.™
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*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.
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