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Prosperous New Year.

Do you think I should hire an attorney to help me negotiate my salary and my contract?

        Noah, from Anniston, AL
(All names are changed)

Answer: You should always use attorneys, and other professionals, (a) when necessary, and (b) to the extent necessary.  No more, no less. In your circumstances, I suggest you consult with an experienced employment attorney, as soon as possible.

In negotiating employment contracts, it is always worthwhile to (a) consult with an attorney about your negotiation strategy, so that he or she can guide you, and serve as a sounding board for your thoughts, ideas and concerns; (b) once an agreement is reached on basic terms (such as salary, term, benefits, job description), then you should always use an attorney to make sure the written document is accurate and comprehensive.

I say these things because I have had so very many people come to me with problems in their employment that would probably have been prevented by having a trained, experienced, watchful eye on your side.

Incidentally, in deciding whether to choose a particular attorney to work with, don’t be reluctant to inquire to make sure:

(a) The attorney has experience in representing employees at your level in employment contracts. Don’t be afraid to ask for references, so you can ask others if they were pleased with his or her work and work style;
(b) The attorney has never represented your employer, or other organizations like it, because he or she might be subconsciously tempted to see your matter as an “introduction” to a potential organizational client; and
(c) The attorney has a mindset more inclined to the business world than the courtroom. He or she must understand that the goal of your efforts is to build a strong, long-lasting working relation, not to vanquish or conquer an opponent.

Hope this helps. The rest is up to you, and your employment attorney.

         Best, Al Sklover

        Daria, from Battle Creek, MI
(All names are changed)

Answer: Plain and simple: No, unless you had an employment contract that said you had a right to be told, which is unusual. When an employer ends the working relation, the employee has no right to know the reason why. And, likewise, when the employee is the one who ends the working relation, the employer has no right to know why. That’s the way it is.

         Best, Al Sklover

Two weeks ago my manager called me into an informal meeting, without notice, and told me he had received several complaints about me, specifically that I supposedly: (1) don’t share information; (2) I don’t thank the team enough; (3) I don’t delegate authority; (4) I am reactive, and bark orders; (5) I don’t lead by example; (6) I deflect blame to my team.

I’ve never been told these things before, and I wasn’t told who said them. After I was honest in expressing that I think these things are so vague, and incorrect, that I don’t think these have any substance. I was then told a second meeting would take place which would be “formal,” and at that meeting I may be placed on a 30-day Performance Improvement Plan (“P.I.P.”).

I asked for a copy of emails reporting these allegations. I asked why my boss waited so long to tell me these things. I asked why I did not get a chance to defend myself in an informal meeting before a “formal” one was scheduled.  I’ve received no response, but a formal meeting has been scheduled for next Thursday.

Two questions: (1) How should I approach the meeting next week? (2) Do I have a case to take my company to Employment Tribunal for attempting constructive/unfair dismissal?

        Edmond, from London, England
(All names are changed)

Answer: You are right: (a) These allegations are anonymous; (b) they are terribly vague; (c) they follow you getting promoted just three months ago; (d) the procedure sure seems rushed, without good reason. All in all, it seems very much that you are being “set up” for a fall by being placed on a P.I.P. for some reason.

Please look in our Newsletter/Q&A Library at Newsletter 1, entitled “Always Push Back at Poor Performance Reviews,” and our Q&A  3, entitled “P.I.P. - Can My New Boss Do That?”

In these situations, we recommend that you respond calmly, clearly, totally respectfully, and most importantly, IN WRITING (preferably in an email) to the allegations as you know them.  These are the steps:  (1) Question the Facts: are they Not Accurate or Clear?; (2) Thus, the Conclusion(s) must be questioned, as they cannot be accurate or correct; (3) Question the Procedure used, which seems to be wrong; and (4) Question the Motives, that is, why this is being done. Last, (5) suggest a different path, such as an independent investigation of what is going on, or that the CEO or Board of Directors be apprised of this turn of events.

Your letter should go to both your manager and the HR representative, and you should ask that it be placed on the agenda of Thursday’s formal meeting.

Though I am not fully familiar with English law and the rules and ways of the English Employment Tribunals, it does seem to me that you have a potential case for attempting unfair or fraudulent dismissal. Please consult English Counsel who are specialists in this area.

At this time we are preparing a new part of our Blogsite:  a Library of Model Letters for adaptation and use by our Blog Visitors. It will not be available for a few weeks; for that reason, I will email you a copy of the Model Letter we suggest you review for possible adaptation in your matter.

Be proactive; be vigilant. Something is under way, and it seems potentially under-handed.

         Best, Al Sklover

How can I ask for severance? I need some advice or a sample letter to draft. I have nothing to lose at this point, and would love some professional advice on possibly negotiating a severance package.

        Sarah, from Atlanta, GA
(All names are changed)

Answer: There is so much to say, I’ve written an entire book about it: “Fired, Downsized, or Laid Off – What Your Employer Does Not Want You to Know About How to Fight Back.” (Henry Holt Publishers, 2000)  It’s an easy read, and costs only about $15. It’s the most popular book on the topic. You can purchase it (new or used) on Amazon.com, or on our Blogsite. See “Self-Help Materials” on our Blogsite homepage.

        Best, Al Sklover

        Jenny, from Taipei, Taiwan
(All names are changed)

Answer: First, I have this question for you: Are you sure you need to respond at all? If he talks behind everyone’s back, even negatively, do people really care what he says?  If it does you no harm, you may not need to respond, at all.  I’m not commenting on your boss, but it is often said, “Let sleeping dogs lie.” That is my first suggestion: do nothing, unless something needs to be done.

My second suggestion is this: to anonymously remind your boss that what he is doing is hurting only him, and will hurt him more if he continues. That is, you might consider sending him an anonymous note (but make sure it is not traceable back to you in any way) that says, “Your habit of complaining about subordinates is hurting the morale of the employees, and in this way it is hurting the shareholders. You should stop, because if you do not, we will have no choice but to let Senior Management and Human Resources know that you are doing this. We would not like to do that. Thank you.”  Because he wants to keep his job, he just might control himself.

Third, a more direct way, although potentially harmful to you, since your boss loses his temper easily, is to write him an email note that says, “I have heard others say that you have told them that certain parts of my performance are not what you would like them to be. It is very important to me to be the best, most productive, most loyal, most valuable employee I can be. Can we talk privately about my shortcomings, and how I can improve myself, so that I am more valuable to you? I would appreciate that very much. Thank you.”

The goal: your interests come first. Try to adapt your methods to best promote your interests. There are always many ways to do that. That’s what smart workplace “navigating” is all about.

        Best, Al Sklover

- Joseph Joubert

ACTUAL CASE HISTORY: Denise was Firm Administrator of a large Denver law firm. She had been recruited from a smaller, suburban law firm to work in the larger, center city of Denver with the promise of “payment for performance.” The larger Denver law firm paid its lawyers bonuses for working and billing extra hours, and offered Denise a significant raise, and a large bonus, too, if she achieved certain targets on specified goals each year.

Shortly after Denise was hired, she met with Peter, the Managing Law Partner and her direct boss, and together they determined specific targets for each of her three goals. For each target achieved, Denise would receive a certain increase in salary, and a certain lump-sum bonus payment. These were her goals, and her achievement targets for each: (a) lowering the turnover rate of attorneys and paralegals by 20%; (b) lowering client late payments by 25%; and (c) lowering overall office overhead costs, for everything from paper clips to pensions, by 10%. Then the two prepared a memo in which they confirmed their understanding and agreement.

Denise is a focused, organized, and goal-driven person. After a brief period of getting to know the law firm and how it worked, she promptly came up with ideas that would: (a) encourage legal staff to remain with the firm, (b) encourage clients to pay their bills in a more timely manner, and (c) identify and reduce unnecessary office expenditures. At the end of her first year, she had achieved two of her three targeted goals, and had missed her third targeted goal by just a little.

By Denise’s first year anniversary, a different partner, Andrew, had succeeded Peter as the firm’s Managing Partner. Denise asked to meet with Andrew, to confirm her new raise and her achievement-based bonus. When they met, Andrew expressed dismay. He had heard about Denise’s understanding with Peter, but the Firm’s new business had plummeted due to the ongoing crisis in credit markets. Also, Andrew said, he did not believe in “payment for performance,” and saw no reason to adhere to Peter’s philosophy. Andrew saw the achievement of these goals to be Denise’s basic job, not a reason for special reward. Andrew was resolute: in light of the Firm’s lack of new business, Denise’s compensation would not be increased at all.

Denise contacted us in a state of near-disbelief. She had believed in Peter’s promises, and had relied on them. We counseled Denise that “all was not lost,” so long as she “kept the conversation going.” As I often say, “In employment negotiation, so long as there is talk, there is hope.”

(more…)

What is “job security?” For discussion purposes, perhaps it can be defined as “not losing your job, and what your job offers you, by surprise.” By that practical definition, we often ask for, and obtain, job security in these six basic ways:

1. Agreed-Upon Term: The most basic form of job security is having an agreed-upon end date for your employment, commonly known as a “term” of employment. Agreed “terms” are not that popular with employers, because they represent commitment to overhead, but are nearly always given to those employees who employers value most - senior executives. But remember the old adage, “You don’t get unless you ask.”

2. Minimum Payout: Many employers will not provide a guaranteed minimum employment “term,” but will provide “guaranteed payout.” For example, on Wall Street it is common to see a new employee told, in effect, “You have no agreed end-date, and therefore no guaranteed employment term, but in all events we will pay you all you would have earned had you been with us a year (or two.)”

3. Minimum Notice: “You won’t lose your job without receiving at least six months (or three months) prior notice, unless you engage in serious misconduct.” This type of valuable job security is also given out, but more commonly on request than without request.

4. Pre-Agreed Severance: Though pre-agreed severance does not keep you in your job longer than your employer wants you there, it does at least give you security regarding some of the most important aspects of being an employee: continued income, continued benefits, and continued perquisites (”perks”), such as leased car, tuition assistance, and the like.

5. Continued Payout of Earned Monies: For those compensated in good part by commissions (or their first cousins, formulaic bonuses) we ask for “payment of commissions (or quarterly bonuses) earned during employment, for a minimum of one (or two) years, whether or not employment then-exists.” A related request relevant to job security is “pro rata yearly bonus.”

6. Continued Perception of Employment: To some, “perception is reality.” Employers will sometimes agree to give an employee the right to (a) keep their title, (b) use their office, (c) maintain email and phone answering, and the like, in order to maintain their appearance of being employed. This prevents the substantial diminution of “perception of value” in the employment marketplace that comes from coming to an interview “hat in hand,” and also precludes the interview question, “Why were you fired?”

The varieties of valuable “job security” an employee can negotiate are limited only by the bounds of creative thinking. These six types are the most common types our clients ask for, and commonly receive, in their workplace negotiations.

“The worst thing about political jokes is that some of them get elected.”

- Elliot Spitzer, Former NYS Governor, In his 1977 High School Yearbook

What more can we say? Should we laugh, or should we cry? It seems proof of the “Peter Principle” - everyone rises to their appropriate level of incompetence, at home, at work, and in “public service.”

© 2008 Alan L. Sklover. Commercial uses prohibited. All rights reserved and strictly enforced.

My complaint about the Union contract went to arbitration, and I won. However, my employer did not abide by the award, but instead fired me. My Union reps have not helped me. When I went to a private Attorney, he told me that only the Union can help me. Is he right?

        Allister, from Setauket, NY
(All names are changed)

Answer: When you join a Union, you are designating the Union to be your “representative” regarding all matters relating to your employment and your employer. Your employer then must look solely to your Union when a problem, dispute or grievance arises.  When a problem arises, your Union is supposed to come in, and fight on your behalf, just like they do when your Union contract needs to be renewed, or renegotiated.

Sometimes, Union Members are not totally satisfied with the efforts, or the results, of their Union representative(s), which seems to be your case. What can you do?

Usually, your Union By-Laws provide that you can “opt out” of having the Union represent you in a certain matter, and instead use a private Attorney for that matter.  You need to find out if that is the case with your Union, and if so, what the “opt-out” procedure is. Next, you need to contact both (a) the Union, and (b) your Employer using the “opt-out” procedure, and notify them that you have decided to change representatives, from the Union, to your private Attorney.

I have handled several such matters in this way, but the first step – finding out the Union By-Laws, and contacting the Union and the Employer of your decision to replace your representative – is your job.

        Best, Al Sklover