Employees departing from a job (voluntarily or involuntarily) may
receive a severance package. Why? Because the Company has decided that it
is in the Company’s best interest to have the employee sign a document with
certain specific terms that are protective to the employer. Some Company’s have
a severance “policy” while others believe offering employees
severance makes good business sense. Regarding the latter, many Company’s feel
that in providing employees severance (sometimes even a minimal amount of pay),
the employer is generally obtaining peace of mind that the former employer will
not raise any claims in a government agency or in court against the employer.

So what terms are generally found in a severance agreement? Below
are just a few of the many terms that can appear:

* Consideration – the amount the employee is to be paid in
severance, the payment structure and possibly payment of employee’s health
insurance or COBRA;

* General Release of Claims – employee to release the
company (as well as its directors, officers, parent, subsidiary, etc,) from any
claims from the beginning of the world until the date of signature;

* Confidentiality – employee’s agreement to keep the terms
of the severance offer and the circumstances of their departure confidential;

* Non-Disparagement – employee’s agreement not to disparage
or say anything bad (verbally or on social media) about the employer (officers,
directors, parent subsidiary, etc.);

* No Re-Hire – employee agrees not to seek employment with
the employer (parent, subsidiary, etc,) at a later date;

* Cooperation – employee agrees to cooperate with the
employer should employer need transition assistance or if the employee has
information the employer needs at a later date;

* Non-Compete / Non-Solicitation – employer restates any
continuing obligation the employee has previously agreed to by written document
or establishes new terms that the employee is being asked to agree to in
conjunction with the signing of the severance agreement;

* Choice of Law/ Arbitration – employer sets out what Court
and what law applies to the agreement and/or the requirement that the employee
arbitrate any claims that may be raised;

* Effective Date of Agreement – the agreement will set forth the time period the employee has to review the agreement and whether the employee can revoke their signature;

* Right to Consult with Counsel – the agreement should state that the employee has a right to have the document reviewed with an attorney prior to signing the agreement. A severance package is an enforceable legal document. Any employee who receives a severance package should have the agreement reviewed prior to signature so as to understand the terms within, if there is any opportunity to increase the offer and what, if any, concerns the attorney sees regarding the language in the agreement and the basis for the employee’s termination / resignation.

Click here to schedule a consultation with Sheree Donath to have your severance package reviewed or learn more about your rights and options as an employee or former employee.

Employees often want to
know if there is a difference between being told they are fired, told they are
being laid off, let go, downsized or terminated. In some instances there are,
but in other instances, regardless of the terminology, fired is fired. Regardless
of the word that is used for your departure, you will no longer be employed at
your current employer and you will need to seek new employment. The questions
that generally stem from there include when will my salary be paid until? When
will my benefits end? Will I receive unemployment benefits? Do I have any
restrictions on my employment? And will I be given a severance package on the
way out?

Receipt of severance may
depend on several items, including among others:

• whether
  the Company has a severance plan
• whether
  you are the only person being terminated as a one-off termination or whether
  you are part of a larger group of employees being let go as part of a layoff
• whether
  your departure is based on your
  performance review or in response to a
  performance improvement plan
• whether
  the Company is closing a portion of the company requiring the Company to
  provide written notice and payments for a set period of time (i.e. WARN
  notices)
• whether
  you have been terminated with
  or without cause
• whether
  the Company is concerned about your departure and wants you to sign an
  agreement releasing any claim(s) you may have raised or could raise against
  them
• whether
  the Company wants you to sign a
  non-compete agreement

To learn more about what
Why
you Should have Your Severance Package Reviewed Before Signing, click
here

If you have been fired,
downsized, laid off, let go or terminated you should speak with an attorney to
find out your rights and obligations. If you have received a severance
agreement or believe you should have received one, contact Sheree Donath to have your document reviewed.

YES! Non-Compete
Agreements are generally enforceable in New York. It is in essence a chess game between the
employer and employee and/or the employer and their competitors. Unfortunately,
many employees are pawns in the “game” and are harmed because they
are not educated on their rights and options.

Non-Compete provisions
can be found in a stand alone Non-Compete Agreement or within various
documents, including, among others: Employment
Agreements, Severance
Agreements,
Confidentiality Agreements, Relocation
Agreements,
Workplace Invention Agreements, Bonus Agreements, Deferred Compensation
Agreements, Retention
Agreements,
etc. .

A Non-Compete Agreement
is a legally binding
contract and should be reviewed
by an attorney prior to your signing the document. it may be presented at the
onset of your employment in your onboarding documents, during the tenure of
your employment or upon your voluntary or involuntary departure from
employment.

Employers may use a
Non-Compete Agreement to bind employees and to protect against their employees
going to work against them for their competitors.

Employers may have an
employee sign a Non-Solicitation Agreement. This can, in fact it often is, the
same as a Non-Compete Agreement.

Some employers require
all employees to sign a Non-Compete Agreement and some employers only have key
employees sign these documents.

Non-Compete
Agreements may
impact your ability to transition to a new job. You may be required to disclose
the terms of your Non-Compete to a potential new employer (even if the job is
not the same or similar) and this may prevent you from obtaining new
employment.

Any employees who receive a Non-Compete Agreement
should have the agreement
reviewed by an attorney prior to signing to determine if there are any terms
within the agreement that can be removed or negotiated.

Any employee departing from employment, voluntarily or
involuntarily. should have the agreement reviewed by an attorney prior
to making any transition to understand their rights and obligations and to
determine if the terms of the agreement apply to potential new employment
and/or if there is any room for renegotiation of the terms upon the employee’s
departure. A non-compete provision may effectively put the employee on the
bench for a period of time and impact your ability to obtain new viable
employment.

If you have received
or have already signed a Non-Compete Agreement or an agreement that contains a
non-solicitation or non-competition provision(s) contact Sheree
Donath to have your document
reviewed.

Many couples in New York choose to get divorced without going to trial. The easiest way for them to do so, is by a “no fault” divorce. A “no fault” divorce means that the couple state that there has been an “irretrievable breakdown of the marriage for at least six months.” The couple is not required to prove a breakdown of the marriage.

Couples filing for a “no fault” divorce will enter into a written agreement that sets forth a settlement of all economic issues, distribution of property, maintenance, custody and support issues, if any.

Previously, a couple had to prove grounds for divorce, such as abandonment, adultery, cruel and inhuman treatment, among others. A “no fault” divorce is quicker and easier than moving forward with divorce on one of the above grounds.

In the mediation arena, a “no fault” divorce is also preferable because it keeps the couple on target of their real goal — the divorce — rather than focusing on the underlying cause that led the couple to seek a divorce. Focusing on the underlying reason for the divorce tends to lead to animosity and possibly retribution nd can derail an amicable settlement.

The mediator can assist the couple with entering into a written agreement. The mediator can facilitate the resolution of the items necessary to accomplish the main goal of divorce. The mediator can assist the couple in raising points the couple may have not ever considered and working with the parties to come to terms on these issues. The mediator can assist with subscribing the terms into a written agreement.

Once an agreement has been reached, the couple can file for an uncontested divorce on this basis.

Contact Sheree Donath to find out if mediation is the best option for you and how the process works.

A Retention Agreement is often given to valued employees to motivate them to stay with the employer during a period of transition or turmoil at the company.

The retention agreement may offer, among others, a bonus, enhanced severance, and/or equity if the employee remains employed with the employer for a set period of time.

Employees receiving a Retention Agreement will be required to sign it and return it to their employer. Before doing so, employees should have the Retention Agreement reviewed by an attorney to ensure that they will actually receive what is being offered to them if they meet the terms.

Specifically, the employee should understand the following issues, among others, that may or may not be addressed within the Retention Agreement:

• the time period that the employee must remain with the employer
• what happens if there is a change of control
• has a change of control been defined
• who is responsible to make payment of the bonus, severance, equity, etc. that is being offered
• what happens if the employee is terminated without cause during the retention period – will the employee still receive the reward?
• what happens if the employee seeks to resign or leaves with good reason- will the employee still receive the reward?
• when will the employee receive the retention compensation and/or benefits
• is the employee’s employment guaranteed during the retention period or is the employee considered at will

Retention Agreements generally occur when an employer is considering a sale of all or part of the business, or if there has been a mass exodus of employees departing from the company.

Employees may also consider requesting a retention bonus when there are periods of instability at their employer.

Depending on the value that they offer to the employer, employees may also be able to negotiate the terms of the Retention Agreement prior to execution.

A Retention Agreement is a legal and binding document. It should be reviewed prior to execution. For more information on these agreements or if you want to have your retention agreement reviewed, contact Sheree Donath to schedule a consultation.

The Faithless Servant
Doctrine allows employers to claw back compensation paid to an employee,
including salary, commissions and/or bonuses.

The Faithless Servant
Doctrine may apply if the employer can show that the employee, during the
course of their employment, engaged in repeated acts of disloyal conduct.
Examples of disloyal conduct that have been found to be actionable are
generally acts against the employer’s interest such as embezzlement, improperly
competing against the employer and/or usurping business opportunities. In order
to give rise to a claim under the Faithless Servant Doctrine, the employee’s
conduct is generally such that it substantially and materially impacts the
employer’s business or rises to the level of a breach of the duty of loyalty or
good faith.

If the Faithless Servant
Doctrine is found to apply, an employee may be required to forfeit all of
their compensation (salary, commissions and/or bonuses) received during the
time period that the employee engaged in such conduct, regardless of whether
the employer can prove damages.

To find out more about
the Faithless Servant Doctrine and how this may affect your employment and
business opportunities or to find out what your rights and obligations are to
your current employer click here.

An Uncontested Divorce
is one in which the parties decide to reach the terms of their divorce without
going to trial. Generally, this means that the parties work to resolve all
issues relating to, among others, child custody, child support, maintenance,
and equitable distribution of property. The parties come to terms that are then
included in a written document to submit to the Court.

So how can a Mediator
help in this process? A
mediator helps to facilitate the process. The Mediator, acting as a neutral
third party, raises in the mediation
session the issues that must
be addressed and works with the parties to come to agreement on these issues.
The terms of the agreements reached are then subscribed to writing.

The Mediator will
discuss with the parties items including without limitation (a) a
parenting plan, (b) how much child support will be paid, (c) how add-on
expenses/ extra-curricular activities for the children will be shared, (d) will
their be any maintenance paid, (e) will the house be sold, (f) what happens
with the parties’ pensions, (f) is there life insurance or should this be
purchased and who will be the beneficiary, (g) how will the parties file their
tax returns, (h) who is responsible for health insurance, (i) how will the
parties’ debts be allocated, (j) can the parties relocate, (k) how will stocks
and bank accounts be split, etc.

The Mediator does not
represent either of the parties. And the parties are encouraged to have their
own attorneys to assist them and guide them with understanding the law and
reviewing any agreement reached. The parties, generally, do not have their
separate attorneys’ attend the mediation sessions. While mediation generally
results in the parties filing for an uncontested divorce, the issues to be
resolved may be very much contested during the mediation sessions.

Once the terms are
agreed upon, if both parties agree, the mediator can prepare the necessary
documents to file for an uncontested divorce.

An uncontested divorce
upon agreement is a much quicker and cost effective means to obtaining a
divorce. The mediation process also offers the parties a more creative approach
to divorce.

Contact Sheree
Donath to find out if mediation
is the best option for you and how the process works.

Workplace bullying
comes in the form of:

• Verbal abuse.
• Offensive behaviors that are threatening,
  humiliating or intimidating.
• Work interference or sabotage that prevents
  work from getting done.

Workplace bullying can be by one person or by a “mob” (this
generally includes peers of the offender or those that think that assisting in
the bullying will gain them favor with the perpetrator).

Generally, “bullies” in the workplace are in high
power positions or have the ability to influence working conditions for the
employee. In most instances it is a supervisor and subordinate relation.
However, it does not have to be a person in a power position that bullies
another employee. Bullies can be the employee’s peer who is trying to gain
favor, an employee who’s work may be subpar, an employee who feels insignificant
or valueless. Bullies take actions to make others feel bad in the attempt to
make themselves seem more important.

Some examples of common tactics used by workplace bullies are:

• Falsely accusing someone of errors the person
  didn’t actually make.
• Hostilely staring at an employee or nonverbal
  intimidation.
• Unjustly discounting the person’s thoughts or
  feelings in front of others.
• Using the “silent treatment.” Refusing to
  acknowledge the person or say hello or goodbye.
• Making up rules for specific people.
• Disregarding and discrediting satisfactory
  work.
• Harshly and constantly criticizing the person.
• Starting, or failing to stop, destructive
  rumors or gossip about the person.
• Encouraging people to turn against the person
  being tormented.
• Singling out and isolating one person from
  other co-workers, either socially or physically.
• Yelling, screaming or throwing tantrums in
  front of other colleagues to humiliate someone.

Donath Law, LLC has
experience raising and resolving situations in which employees are being
bullied in the workplace. While the laws have not been passed to protect most
targets of bullying, there are creative alternatives to assist employees in
protecting their employment and fighting back against bullies. Bullying may
also fall under laws, among others, that protect against discrimination, sexual harassment, retaliation and breach of contract.

Some employees being
bullied feel they have no option but to resign from their job. There are other options.

Don’t continue to be a
victim! For more information or to find out how we can better assist you with
your personal situation, contact Sheree Donath.

Employees always question what it means to be Terminated With
Cause versus Terminated Without Cause. The quick response, is that a
Termination With Cause generally means that an employee engaged in some kind of
misconduct whereas a Termination Without Cause is based upon a decision of the
employer to end the employee’s employment.

Terminations With Cause generally occur in some of the following situations, including
among others:

• violations of company policy
• insubordination
• fraud
• embezzlement
• conviction of a crime
• violence or threated violence at work
• falsifying records

At times, Company’s try to claim that performance can be a reason
for a Termination with Cause. However, poor performance or not meeting
expectations is not necessarily Cause (i.e. gross misconduct) as defined above,
but can be used to deny an employee benefits or severance that the employee may
be entitled to receive had the employee been terminated without cause.
Sometimes, employees who are about to be Terminated With Cause may be given the
option to resign from the job.

Termination with Cause has substantial ramifications and could
result in an employee losing stock options, equity, deferred compensation,
severance, bonuses, unemployment benefits, etc.

Termination Without Cause is how most employees are terminated, as most employees are at-will
employees. Examples of
Termination Without Cause are layoffs, reductions in force, job eliminations,
downsizing, etc. Terminations Without Cause generally afford employees with all
the benefits an employer has promised through contracts and policies. Many
employees Terminated Without Cause also receive severance benefits.

Regardless of whether an employee is Terminated With Cause or
Terminated Without Cause the employee is still obligated to adhere to
contracted restrictions on the employee’s future employment, including, Non-Compete
Agreements, Non-Solicitation Agreements, Workplace Invention Agreements,
Confidentiality Agreements, etc.

Understanding what you may be entitled to
receive when you are terminated may be confusing. Click
here to schedule a time to
speak with Sheree Donath to discuss your employment situation and to obtain
guidance on your specific situation or if you believe you may be terminated
soon.