Layoffs are occurring in many industries, for many reasons. Some people are being notified of their impending termination directly by HR while others are finding out by email. Regardless of how you may be notified that your job has been, or is soon to be eliminated, many laid off workers are being presented with severance packages. While many people faced with unemployment are eager to receive some money and/or benefits, don’t be so quick to sign the documents presented to you without first understanding the offer, the terms in the agreement and what effect signing the agreement has on you and your future.

Here are a few items to consider before signing the severance document(s):

HAVE THE SEVERANCE AGREEMENT REVIEWED. The document presented to you is a legal and binding agreement. It will even state within the agreement that you have the right to have the agreement reviewed by an attorney. You should make sure, even if your intent is to sign the agreement, that you understand the terms within it. The severance agreement will contain a release of claims (meaning you cannot bring a lawsuit against the company if you sign the agreement), confidentiality provisions, and may contain a non-compete or non-solicitation provision(s), non-disparagement provision, no rehire provision, among others. Once signed, other than the seven-day revocation period found within certain (but not all) severance agreements, you are in a binding contract.

ARE YOU GETTING EVERYTHING YOU ARE ENTITLED TO RECEIVE? Are you due monies or benefits that are not included in the agreement? Are you due expenses? Are you entitled to a bonus? Commissions? Is this the proper amount of severance that is being offered to you? Can you enhance the offer? Is there a severance plan or precedent as to severance offers given to others?

WHY WERE YOU SELECTED FOR TERMINATION? While the company has announced that numerous people are being laid off, there is still a selection process. Was your selection for termination due to an improper motivation? This should be explored with a legal professional. If the answer is yes, then the severance offered may not be sufficient based on the circumstances.

CAN YOU NEGOTIATE THE TERMS AND LANGUAGE OF THE AGREEMENT? Everything in life is open to negotiation if people are properly motivated and you are willing to possibly assume some risk.

TIME TO SIGN THE AGREEMENT. The severance agreement will contain a specific time period for review and execution. Be sure to pay attention to this date, as once you miss the date, the offer may be withdrawn.

Keep in mind that the company is not offering you severance because they are just being kind. It is a business transaction. The company is offering you money in exchange for your signature on the document. They are, in essence, buying the obligations they are requesting of you (i.e. release of claims, confidentiality, restrictions on future employment [i.e. non-compete] among other provisions). Also, keep in mind that the money you are being offered will be taxed when received and consider if this amount is sufficient for you to accept the commitments the company is requiring.

If you have received a severance package already or expect to receive one soon, contact Sheree Donath, Esq. (by clicking here) or at sheree@donathlaw.com to have your severance package reviewed; to understand your rights; to discuss whether the package can be enhanced and/or to engage Donath Law, LLC to negotiate the terms of the severance offer.

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EMPLOYEES CAN TAKE ACTION AND WORK THROUGH THE PERFORMANCE IMPROVEMENT/ ACTION PLAN AND MAKE IT WORK FOR THEM. NEXT STEPS DEPEND ON THE EMPLOYEE STANDING UP FOR THEMSELVES AND PUSHING BACK AGAINST THEIR EMPLOYER.

Performance Plans are used to manage out employees. They help the
employer create a written record for termination. Employees should understand
that they have rights even while they are still employed and do not have to
accept the performance plan as is or resign from their employment.

Many employees who receive a performance plan, wonder if they should quit. Others are pushed to resign from their employment either by their manager or HR, sometimes with the offer of minimal or no severance if they do so. Let’s be clear – you DO NOT WANT TO QUIT! While that is the goal of your employer, that is often not in your best interest. Do not let the fear of “termination” prevent you from making logical and financially important decisions.

Employees that quit their jobs or resign from their employment generally do not get unemployment benefits. While this may seem minimal to some people, the benefits are ones that you are entitled to and why should you be denied these payments. It is money in your pocket that you will be giving up for no reason. Generally, it is not even in your best interest to resign from your employment, even if you decide to accept a severance package.

Employees that quit may also lose out on unpaid bonuses and/or unvested stock, among others and may be subject to restrictive covenants that may otherwise not be enforceable. Generally, if you are not employed on the payment or vesting date(s) then you lose these rewards that you worked hard to achieve over the past year. You will also lose any benefits you may have (i.e. medical benefits, life insurance benefits, disability benefits, etc.).

Moving forward on the performance plan, while stressful, allows you to continue getting a weekly paycheck and benefits for you and/or your family for at least a set period of time. It also allows you to extend your employment while looking for another role.

You also do not know what may transpire while you are on the performance plan. Changes may ensue at the company during the duration of your plan and the person who previously thought you didn’t offer enough value or with whom there was a conflict, may be let go and your position may be safe. You may also be able to prove to your employer that you should not have been placed on the performance plan, making it difficult for the employer to continue the plan and/or fire you. If you are able to transition while on the performance plan, an opportunity may arise internally that you can transfer into.

Staying on the plan also allows you time to look for a job while
you are still employed, to possibly prevent a gap in your work history.

If you are placed on a performance plan, you should have the plan evaluated and question items within. You should not simply accept the statements within the performance review or the plan as factual. You should also question the motivation and timing of your being placed on the performance plan.

While you may believe that you shouldn’t have been selected for the plan and/or that obtaining the goals in the performance plan is a moving target and that you may want to simply give in and do as your employer recommends, you need to protect yourself and your family. If you have received a performance plan, don’t just sit back or follow the guidance of your employer or HR. You should find out your rights and options to help you navigate the best path for you. There are various ways to proceed based on what is optimal for you and/or your family and specific to your circumstances.

Make it Happen! Take Action Now!

For more information about your options contact Sheree Donath to schedule a consultation.

EMPLOYEES CAN TAKE ACTION WHILE THEY ARE STILL EMPLOYED AND DO NOT HAVE TO WAIT UNTIL THEY ARE FIRED OR FORCED TO RESIGN!

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Is your New Year’s Resolution to leave your current job and find a new one? If so, there are factors to consider before you take the leap. Here are a few items for consideration:

Are you required to provide notice and if so, how much?

Do you have a new job lined up and have the terms been finalized, in writing, prior to your providing resignation to your current employer? If you resign without another role, you are unlikely to receive unemployment benefits.

Do you have restrictions on your future employment, i.e. non-compete, non-solicitation?

Are you entitled to receive a bonus and when will that be paid out? Keep in mind that if you leave before the payment date, then you are likely not to receive your bonus.

Do you have any equity scheduled to vest? You will want to ensure all vesting (or at least the next tranche) takes place before you provide notice, if possible.

Do you have a contract? Can you resign with Good Reason?

Have you gathered all documents that relate to the terms of your employment: employment contract, restrictive covenant agreements, stock plans, commission plans, etc. As a reminder, you cannot take or keep company documents that are not specific to the terms of your employment and your access to your system will be cut off on your termination date, if not before.

Will there be an exit interview? Do you have any possible claims to raise prior to or on your departure or have you raised concerns during your employment?

Are you on a performance plan or about to be placed on a performance improvement plan?

Are you entitled to severance pay and/or benefits?

The above questions are a few to consider before leaving your employment. If you are considering departing from your role, Donath Law, LLC is available to assist you in your transition (reviewing new employment documents, understanding documents signed when you onboarded or throughout your employment and/or seeking/reviewing severance documentation). Feel free to reach out to Sheree Donath, Esq. – Your Workplace Tutor and Legal Advisor – to determine next steps and to understand your rights and obligations.

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The holiday season is here and that means for most companies, a Holiday/Winter Party. Generally meant to boost morale, these parties can also result in trouble for the employee and the employer. It is important that you do not let  festivities trump your otherwise good judgment.

While a holiday party can be a great opportunity for an employee to have a good time and get to know their boss, manager, and co-workers better, it can also result in bad choices. Failure to act properly during the holiday party could result in disciplinary action, or worse, termination.  Before attending the holiday party keep these factors in mind:

(1) Dress professionally. Remember this is still a company sponsored work event. You should dress appropriately for it and not wear clothes that would be deemed inappropriate for the workplace.

(2) Bring your spouse, partner, significant other or a guest, but only if they are invited. Do not assume that you are invited with a guest. This is not always the case. If you are invited with a guest, make sure that the person you choose is the proper person to bring to this kind of event. Having a guest with you may prevent you from acting in a way that you would not normally act in front of your co-workers or unfamiliar people. This person can also reign you in, if necessary. Make sure that the guest you bring acts appropriately and is aware that this is a workplace event.

(3) Mind what you say. Do not gossip or complain to other co-workers at the event about something that happened at work. If it would not be considered proper decorum to speak of what you are discussing during the workday then you shouldn’t do so at the holiday party either. Do not overshare information about yourself. Remember, you will need to face these people the next day at work, and they will remember what has been said. This is not a time to let everyone know you are unhappy about your bonus, your boss or another colleague. Keep your concerns to yourself or report them properly at work.

(4) Do not judge or question people who may not attend these gatherings. Not everyone partakes in the holidays for their own reasons. Some people do not believe in the holidays or parties and others may have personal reasons  for not wanting to attend. It is not for you to make judgment on their lack of attendance or to question them about why they are not partaking in the event. 

(5) Use this opportunity to network. There are people at the holiday party that you don’t get to see on a daily basis. Try and speak to these people and let them get to know you better, but don’t cling to them. Remember, there are other employees at the party that they may want to socialize with as well and if there are guests invited, possible new connections that can lead to a new or different job opportunity. Be careful that you don’t only “talk shop” or you may be considered boring and unable to socialize with your colleagues. Work can be discussed, but it shouldn’t be the sole topic of discussion. Do not try and ask for a promotion or a transfer during the holiday party. This is not an appropriate space to try to interview or advocate for a new role.

(6)  Don’t drink too much. Most holiday parties have alcohol available. However, be mindful of the amount you are drinking and your actions because of your intake. While you want to have a good time and let loose, you also want to ensure that you are not subjecting yourself to any claims of improper conduct, sexual harassment, etc. Also, if you do drink, make sure that you have a way to get home that does not require you to drive yourself or others.

(7) Review company policies. Remember that the gathering is a company sponsored event and as such, you must still follow the company code of conduct. Specifically, the anti-harassment and anti-discrimination policies still exist. A violation of the policies will result in disciplinary actions being taken.

A seasonal party can boost employee morale and allows employees to relate to their colleagues in a less stressful environment. However, be mindful of the above and remember that this is not a social event with your family and friends.

Contact Sheree Donath, Esq. (by clicking here) if you have any questions or concerns about your employment relation or need assistance in determining, or standing up for, your rights in the workplace.

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There are many questions to consider before deciding to move forward with divorce mediation. Review the below non-exclusive list of questions to help you decide whether mediation may be the right approach for you:

1.  Do you and your spouse both want to get the divorce?

2.  Are you and your spouse able to resolve your differences, including be in the same room and making joint decisions or compromising?

3.  Do you want to have control over the process?

4.  Are you interested in creative alternatives?

5.  Are you and your spouse interested in making the divorce process easier on yourself and your children?

6.  Are you and your spouse willing to put the needs of your children before your own needs?

7.  Are you and your spouse interested in resolving your divorce in a cost-effective manner?

8.  Are you and your spouse prepared to disclose all of your relevant financial data?

9.  Can you and your spouse come to agreement on issues?

10. Are you and your spouse willing to work together cooperatively to reach an agreement?

If you answered yes to the above questions, you may be a candidate for mediation.

A.  Are you a victim of domestic violence?

B.  Are there orders of protection against you or your spouse?

C.  Do you feel that your spouse will prevent you from speaking or over-power you?

D.  Are you afraid of your spouse?

E.  Are you looking for retribution?

If you answered yes to A through E, mediation is not the right approach for you.

To find out more about the mediation process, contact Sheree Donath at (516) 804-0274 or at sheree@donathlaw.com.

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Take Action To Protect Against a Poor Performance Review

Most employees receive written performance reviews on a bi-annual or annual basis. The purpose of these reviews should be to set goals, keep track of employee progress by measuring objective criteria, set out resources, train employees, motivate poor performers to do better and to determine proper raises or bonuses. This is not always the case.

Performance reviews are also used to create a paper trail for employers to terminate employees. Performance reviews are used to set up an employee to fail and create a written record prior to terminating an employee.

Performance reviews that are not used properly make it impossible for the employee to succeed. They provide overreaching goals that cannot be achieved; are not applied consistently; do not allow employees an opportunity to respond to deficiencies within them and generally do not follow the company’s policies or procedures.

Performance reviews may be used improperly to target employees that employers want to terminate for an illegal reason, i.e. race, gender, disability or perceived disability, pregnancy, sexual orientation, etc. They may also be used improperly to retaliate against an employee that has raised a claim of discrimination, participated in a workplace investigation, filed a claim with the company or a government agency, raised claims of impropriety or wrongdoing, raised health concerns, etc.  Performance reviews may also be used to target an employee that is about to receive a large commission if a deal closes soon or to deny the employee a bonus that will go into a bonus pool and enhance the manager’s personal compensation. While this is not always the case, there is generally a reason that an employee goes from being a stellar employee to now a claimed poor performer or receives a bad review after receiving praise.

Performance reviews may be used to place an employee on a performance improvement plan or a PIP also known as a performance action plan. The employee generally has a set number of days to achieve unattainable goals or otherwise be subject to discipline, including termination.

If you are have recently received a poor performance review and believe that the rating is not justified, it is likely that you will be terminated shortly.

For more information on how to respond to the performance review or performance plan contact Sheree Donath at sheree@donathlaw.com for assistance. You are not alone and there are steps that can be taken to respond to the employer and your supposed poor performance.

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Halloween is a time for fun. But what does that mean when you are at work? Halloween in the workplace can be very tricky and not much of a treat.

If you are going to wear a costume to work, be mindful of the following items, among others:

• costumes should not be sexy or provocative;
• costumes should comply with workplace dress code policies;
• costumes should comply with workplace anti-harassment and anti-discrimination policies;
• costumes should not be inappropriate;
• costumes should not be religious;
• costumes should not be political;
• costumes should not be offensive to others;
• costumes should not be so realistic or scary that they may result in health issues to others; and
• costumes should comply with all safety requirements of your office

Keep in mind that Halloween is a religious holiday. As such, some employees may not want to participate in a Halloween party, costumes or events because of their religious beliefs. Employees should not be mandated to attend any Halloween parties or events or made to feel bad about their decisions. Employees should not be retaliated against for their non-attendance on Halloween or afterwards. Employees should not be harassed by colleagues or their supervisors to attend these events.

Employees should be reminded of all company policies prior to Halloween as Halloween events and parties could result in legal claims of, without limitation, sexual harassment, discrimination, retaliation, overtime, worker’s compensation.

Employees who believe they have been treated in an inappropriate or illegal manner should immediately report the conduct as required by their employer. They may also want to consult with an attorney to find out more about their rights and options and to determine if they can take legal action, if they so choose. Contact Sheree Donath at (516) 804-0274 or at Sheree@DonathLaw.com to obtain more information to learn more about your rights and obligations at work.

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In mediating your divorce, one of the holidays that should be considered and specifically addressed in your parenting plan is Halloween. Halloween can be very important in a child’s life. It is a time for dressing up, candy, parties, and spending time with family and friends. While it may be all fun for the child, it can be a nightmare for the parents if it is not dealt with in advance.

Are you an employee facing a workplace situation such as: discrimination, sexual harassment, a toxic work environment, claims of poor performance, claims of impropriety, bullying, fear of termination, among others? Are you thinking about reaching out to HR for guidance? While this is not the wrong path to take, reaching out to HR comes with some caveats to keep in mind. For guidance on the best approach to reporting concerns to HR, schedule a consultation with Sheree Donath, Esq. at sheree@donathlaw.com.

I am frequently contacted and asked whether an employee should contact HR or if this is a waste of time.. Many employees who are faced with a work dilemma are torn about what steps they should take to stand up for themselves, obtain assistance and protect themselves at work. They are also worried about being retaliated against for reporting concerns to Human Resources (HR).

Employees are often told that HR is there to assist them should they have any issues that cannot be resolved directly with their manager, but most employees are torn about whether reporting their concerns will cause more harm than good even with the promises of no retaliation that the employee is provided by HR and in their company employee handbook.

The people who work in HR are employees like yourself. As such, just like you, they are also concerned about their jobs and how their actions can impact their livelihood. HR’s job is to assist you, but they must do so cautiously. Same as you, HR employees report to others and must take those actions that are expected in their role. There are some situations in which HR can assist an employee and that it is extremely important that the employee reach out to HR for intervention. There are other situations that HR cannot directly intervene and take any action(s) to obtain the final result that the employee may be looking to achieve.

If you are considering contacting HR, there are a number of factors to be considered. Amongst those factors are how to be heard, what are your looking to achieve and how to get your message across in the best possible way so that HR can intervene and take those steps necessary to resolve your concerns and quell your fears about retaliatory actions.

While not all companies have an HR department, the above worries are pertinent in all employment situations. Employees are not generally taught how to take actions or stand up for themselves, even if they do this in their daily job for others. It is different when it is personal to the person and most people feel insecure and scared because the stakes are high.

Donath Law, LLC can assist you in understanding your options, timing, and can guide you through the uncertainty you may be feeling. You are not alone. Don’t let your employer make you think you that you don’t have any options. There are paths that can be taken to modify your situation.

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Severance is a business decision. Unless your employer has a severance policy and your departure falls within the terms of the policy, you are not entitled to severance. For employees being offered severance, the document should be reviewed prior to your signing the agreement. Peruse the questions below and contact Sheree Donath at 516-804-0274 or at sheree@donathlaw.com to discuss the answers and to find information specific to your situation.

Keep in mind that these are just a sampling of the questions to be considered:

Should the severance agreement reference a termination date, state a resignation date or say you are entering into this agreement based on mutual agreement? Are there consequences to it saying one or the other?

How long do you have to sign the agreement? Can you revoke your signature once you sign?

Were you part of a layoff or are you the only person being let go right now?

Why were you the person selected for termination?

Are you entitled to unemployment benefits?

What legal terms are commonly found in the severance agreement?

Are you entitled to continued health coverage/ COBRA and if so, will the company pay for this?

Are you entitled to a bonus or a pro-rata bonus?

What happens to your equity?

Are you entitled to earned and accrued commissions? How are commissions calculated and paid out?

Why is there a non-disparagement clause in the agreement and why isn’t it mutual?

Why is there a release of claims in the agreement and why isn’t it mutual?

What kind of cooperation am I required to provide?

Am I still bound by my non-compete/ non-solicitation agreement?

When will I receive payments under this agreement?

Is the agreement mitigated and under what circumstances? Should I be comfortable with the agreement having a mitigation clause?

Can the agreement be negotiated?

Does the agreement require you to notify your former employer of impending or new employment opportunities?

The above are just a few examples of the many items considered prior to executing a severance agreement. Severance agreements should be reviewed by an attorney knowledgeable in this area of the law. It is a binding contract and contains restrictions on you once signed. It also may incorporate previous agreements that have been signed.

It is important to understand the document you are about to sign, have it reviewed and determine if there is an opportunity to enhance the offer you have received.

For more information or assistance with your personal severance package, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

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