Received a Severance Package from Your Employer – Here are a Few Points to Consider

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If you received a severance package from your employer, you have either recently departed from your employment or a date has been communicated as your last date of employment. There are different reasons a severance package is given (i.e. a layoff, an employee raised claims against the employer during the employee’s tenure; the employee is entitled to severance per the terms of an employment contract, in lieu of being put on a performance improvement plan, etc.). Severance is not generally required (unless the employer has a severance plan), but is offered because the employer wants the employee to sign a document that contains, among others, a release of claims, non-disparagement, confidentiality, cooperation.

Employees who receive a severance document should have the document reviewed by an attorney to ensure that the language within is the language typically found within these agreements. To find out more about what terms are generally found in a severance agreement, click here. It is recommended that the attorney reviewing your severance package be one that is well-versed in employment law so that your interests are protected.

Employees should be cognizant of the time period they have to sign the severance agreement. If the employee is over 40, the employee generally has at least 21 days to review the agreement and 7 days to revoke the agreement. If the employee does not timely sign the agreement, then the employee may be denied the severance being offered.

Employees should look at the terms of the agreement to see if what is being offered includes everything the employee may be entitled to or be seeking (i.e. health benefits, unpaid accrued wages or commissions, future payments, bonus, expenses, vacation). Remember, once the release of claims has been signed, the employee is generally precluded from bringing a claim against the employer in Court, so the employee would want to make sure everything is agreed upon prior to execution. For a list of some of the items that an employee may look to negotiate in a severance package, click here.

Employees should look to see if there is a non-compete or non-solicitation agreement in the document, or if the non-compete/ non-solicitation provisions that may have previously been agreed to, have been waived or limited. It is important to understand that non-compete/non-solicitation provisions are likely still enforceable if you have been terminated. For more information on your rights relating to a non-compete agreement, click here.

For a substantive review of your severance agreement prior to execution, to find out whether the agreement can be negotiated or enhanced and to determine your rights and obligations, contact Sheree Donath.

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Employment Update: Notice of Electronic Monitoring of Employee Phones, Internet, Email

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Starting May 7, 2022, employers with a place of business in New York state must provide notice to employees if they will be monitoring their telephone conversations, emails and/or internet usage. The specific terms of the new law can be found here along with the type of business that may be excluded.

The notice requirement presently requires employers to provide notice of electronic monitoring upon hiring of new “employees”. Employee is not defined and is silent as to whether this new law would pertain to others, like independent contractors, who may use the employer’s phones, computers, internet, etc.

Employers are required to provide the newly hired employee notice of their electronic monitoring policy as well as obtain a signed acknowledgement from the employee of the employee’s awareness of the policy. The employer is also required to post such notice in a place that is easily visible by the employees to whom it pertains.

Currently, the new law does not apply to current employees of the company, but employers would be wise to provide notice and obtain an acknowledgement from all employees.

Should an employer fail to comply with the new law, an employee does not presently have a private right of action. Rather, this law is enforced by the attorney general, who may fine the employer $500 for the first violation, $1,000 for the second violation and $3,000 for the third and subsequent violations.

For more information or to find out about your right and options, contact Sheree Donath at sheree@donathlaw.com or at (516) 804-0274 or by clicking here.

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Are You (or Do You Want to Be) a Unicorn Employee?

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Unicorns are mythical creatures. They are thought to be magical. In the workplace, a unicorn employee is “special” and usually the employee that goes above and beyond at work. Unicorn employee status is generally thought to be unattainable by most. However, anyone can be a unicorn employee if they choose to. Unicorn employees are employees that are team players. They are hard-working and respectful. Out to prove they can accomplish many tasks. Unicorn employees tend to put the job and their team before themselves. Unicorn employees stand out and take charge, but in a positive way.

Overall, and said differently, unicorn employees offer value to their employers. Employees can offer value to their employers in different ways. Each employee is special and unique and that uniqueness should be cultivated so that each employee shines and the employee’s talents and skills are used to the betterment of their employer. Employers should encourage and develop their employees as all are unique and all employees have the ability to be a unicorn employee if properly motivated.

When employees show value to their employer those employees are generally rewarded with among others, accolades, promotions, better and/or more challenging/creative opportunities, increased compensation/bonuses.

When employees show value to their employers, then employers are concerned that the employee may depart from the organization and take steps to prevent that from occurring.

Employees can often benefit from employment counseling and job coaching guidance to enhance their performance or prove their value to their employer.

During this period of Great Resignation and Great Reshuffle, employers should take those actions necessary to ensure that their unicorn employees don’t resign.

To hep you stand out in the workplace and be viewed by your employer as a highly, valuable unicorn employee,  contact Sheree Donath.

For those unicorn employees who believe they are being undervalued by their employer and are seeking to make a transition and want to transition assistance or to understanding their rights and obligations, including any documents they may have signed, contact Sheree Donath.

For all employees, be you and be special and let your value shine.

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Divorce Update – Increase in Income Cap When Calculating Maintenance and Child Support Goes into Effect on March 1, 2022

Divorce Signpost Means Custody Split Assets And Lawyers
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Effective March 1, 2022, there are new guidelines to follow:

Maintenance: The income cap is increasing from $192,000 to $203,000

Child Support: The combined parental income cap is increasing from $154,000 to $163,000

Self Support Reserve: is increasing from $17,388 to $18,346.50

Poverty Income Guideline Amount (per a single person): is increasing from $12,880 to $13,590

If you are considering divorce mediation, or have questions about how this pertains to you, or how maintenance and/or child support are calculated, or have a current agreement you are entering into or may have already signed, contact Sheree Donath to schedule a consultation.

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There was a “Change in Control” at my job. What does this mean?

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Generally a “Change in Control” refers to a change of ownership. Besides a change in ownership, a change in control may result in changes throughout the company that trickle down to the employees. Many employees feel uneasy and unsure of how a change in control and the possibility of a new management will specifically impact the employee.

Some modifications that may result from a change in control is a change in management, restructuring of jobs, merger of two entities that results in redundancy of certain employees and possible layoffs. A change in control may also provide new opportunities to employees due to the possibility of greater resources and revenue.

Some senior level executives have specific language in their employment agreements that define what constitutes a change in control. Along with the clear definition of change in control, some of these executives also have language within their employment agreements that allow them the option to resign from their employment with good reason. Resigning from their employment with good reason may afford them certain benefits (i.e. bonus, payments, severance, continued health benefits). These benefits, if available, are usually set forth in their employment contract.

In moving forward with a change in control, there may also be concern about mass departure or turmoil resulting due to leadership changes. As such, in preparing for the transition of ownership, oftentimes, key, valued employees may be offered a retention agreement to motivate these employees to remain with the company for a period of time. These retention agreements may offer employees a term of employment, bonuses, increased pay, stock, etc.

A change in control may also result in new documents being provided to the employees, including confidentiality agreements, non-compete agreements, non-disparagement agreements, new handbooks.

A change in control may also result in a change of benefits offered to employees (i.e. health insurance, 401K, profit sharing, life insurance).

Setting aside the fear of something new, a change in control may offer employees opportunities to, among others, obtain new skills, obtain new resources, to transition away from certain managers, seek promotions, enhance their compensation, to be team players and to prove their value. It also provides employees an opportunity to consider their employment values to decide if this is the job that the employee wants to remain at or if they want to begin a new job search.

To understand your rights, obligations and/or options due to a pending or recent change in control, contact Sheree Donath by clicking here.

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What is “No Fault” Divorce and Can a Mediator Help Me File for a “No Fault” Uncontested Divorce?

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New York recognizes No Fault Divorce. What that means is that in New York a couple does not have to show that the marriage is ending due to the fault of the other spouse. Rather, all that must be shown is that the marriage has “irretrievably broken” for at least six months. Filing for an uncontested divorce using a “no fault” ground makes the divorce process quicker and easier since neither party is required to prove wrongdoing of the other person. Parties filing for a no fault uncontested divorce must still come to terms on all open issues prior to filing for an uncontested divorce. Such items include, among others, distribution of property (assets and debts), payment of maintenance (previously referred to as alimony), payment of child support, payment of add on expenses, parenting plans.

Mediation is generally a good choice for those interested in filing for an uncontested divorce based on the no fault ground. Mediation offers creative options and streamlines the divorce process. For more information on your options and to determine if mediation is a good choice for you, click here.

To find out more about what information you may need to move forward with divorce mediation and an uncontested divorce and to help you prepare for your divorce mediation session, click here.  For a divorce mediation checklist, click here.

To contact Sheree Donath, Esq. to understand the mediation process, click here or reach out by email to sheree@donathlaw.com.

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New Employee Whistleblower Protections Effective January 26, 2022

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Effective January 26, 2022, whistleblower protections for employees will be expanded. Previously employees were only protected from retaliation if (a) the employee complained about an ACTUAL violation of law AND (b) the violation presented “a substantial and specific danger to the public health and safety.”

Some of the key components of the amendment include, among others:

(1) protecting employees from retaliation if they disclose or threaten to disclose a policy or practice of the employer that they REASONABLY believe violates a law, rule or regulation OR that the employee REASONABLY believes poses a substantial threat to the health or safety of the public.

(2) protections are afforded to current and former employees, as well as independent contractors.

(3) “law, rule or regulation” will now be defined as: (i) any duly enacted federal, state or local executive order; (ii) any rule or regulation promulgated pursuant to any such executive order; or (iii) any judicial or administrative decision, ruling or order. This includes pandemic related executive orders.

(4) expanding the statute of limitations from one year to two years.

(5) expanding the definition of adverse action to include: (a) taking or threatening to take adverse actions against an employee in the terms or conditions of employment (i.e. discharge, suspension, demotion); (b) actions or threats to take action that would adversely impact a former employee’s current or future employment; (c) threatening to contact or contacting immigration authorities or otherwise reporting or threatening to report an employee’s (or an employee’s family or household member’s) suspected citizenship or immigration status to a federal, state or local agency.

Employers are required to post notice of these new protections and to properly train managers and supervisors to properly address whistleblower complaints.

For more information about your rights under the new amendment to the New York whistleblower law or if you believe you have been retaliated against, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

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I Have Been “Harassed”, “Mistreated”, “Singled Out”, “Discriminated Against”, Do I Have a Case?

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Frequently I am contacted by people that are having a problem at work. I am told that the individual is being “mistreated”, “harassed”, “singled out”, and/or “discriminated against”. I am then asked, “do I have a case?”. Generally, it is not as clear cut as the question posed makes it seem. To answer the person’s question, we must delve deeper and explore the circumstances behind the conduct that has brought that person to reach out to me.

Workers may be harassed or mistreated or treated differently then their colleagues at work but unfortunately that alone does not meant that the employee has a “case”. While the conduct may be improper and morally repulsive, there are certain requirements that must be met for the conduct to rise to illegal discrimination and to be actionable. It is also not sufficient just to use the key trigger words, but to be able to explain what is meant by the description words that are shared with me and explain why the person has come to these conclusions.

One of the first things to determine is whether the person is a member of a protected class. In New York, some of these categories include, among others, race, color, religion, sex (including sexual harassment and pregnancy), national origin, age, disability, genetic information, predisposing genetic characteristics, creed, actual or perceived sexual orientation, gender identity or expression, reproductive health decision making, military status, marital status, familial status, domestic violence victim status, arrest or conviction records. There may also be additional categories of protection under state, federal and local laws.

If the worker is a member of a protected class, we then determine if an adverse action has occurred. An adverse action is an act that negatively impacts the person’s employment. Some examples of an adverse action include, among others, failing to hire or promote an individual, demoting an individual, placing the worker on a performance improvement plan, disciplining the worker, terminating the worker.

The next inquiry is whether the person who took the adverse action against the worker was aware that the worker was a member of a protected class.

It is not enough to say that you have been harassed or bullied in the workplace, as these alone may not be sufficient to bring a claim against your employer unless such conduct is because you are a member of a protected class.

Finally, it must be shown that there is a causal connection between the adverse action and the fact that the person was a member of a protected class. Particularly, that the adverse action was taken because of the person’s race, gender, disability, sexual orientation, etc.

The employer will have an opportunity to provide evidence and information to show that the reason for the supposed adverse action had nothing to do with the person’s protected class, but rather was based on a legitimate business reason.

If the worker is able to prove all of the above, then the individual may have a “case” against their employer. The question then becomes what the value of the case may be and what action(s) the person may want to pursue.

For more information on whether you have a “case” and what your options are to remedy your situation, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

If they believe that they do, the individual can report the conduct internally to the employer, contact an attorney, and/or file claims with the EEOC, New York State Division of Human RightsNew York City Commission on Human Rights or in Court.

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Job Coaching/ Counseling Services

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Donath Law, LLC offers job coaching and counseling services. Some of these services are listed here. For more information on any of the below topics or other employment matters, or to get assistance, contact Sheree Donath, Esq. by clicking here.

Job Transitions: Help individuals thinking about transitioning to a new position. Discuss what job values are important. Guide people to help them try and find their ideal new job and what factors to consider in making the transition.

  • Guide individuals through the interview process and the requests for compensation/benefits
  • Help employees to understand what they have in their current role and what they may be giving up 
  • Review documentation related to the new role – employment contracts / handbooks / policies / non-competes/etc.
  • Guide employee in departing from current role – letters of resignation/requests for severance/review of severance documents/review of restrictive covenants/plan for retirement

Performance Reviews and Performance Plans: For those who received a performance improvement plan (“PIP”) or performance action plan, I can help navigate through this process. Guide individual in pushing back against the PIP, transitioning out of the company and/or position the employee to try and get severance

Below are some of the items reviewed in evaluating and responding to the PIP and the PIP process:

  • Is it subjective? Are there clear goals? Is there a time period for the end of the PIP?
  • Does the PIP conform to employer’s policies and practices?
  • Were there prior performance evaluations and what was the employee rated?
  • Were there other prior warnings about performance?
  • Is the timing suspicious and/or is there an improper reason that the person was placed on the PIP? (right before a bonus to be given, employee reported misconduct, employee came back from worker’s compensation/FMLA, discrimination etc.)
  • Who is responsible for determining if the employee is meeting the objectives of the PIP?
  • Is there an opportunity for employee to respond to the PIP

Workplace Conduct/ Behaviors/ Investigations/ Discrimination: Monitor and guide daily workplace interactions. Assist in determining whether conduct rises to something improper and/or illegal. Counsel employees on how to respond to work related situations. Coach employees to push back when they have true workplace concerns. Prepare/review written documentation, as necessary, to commence an investigation into workplace conduct. Prepare employees for meetings with colleagues, supervisors, HR. Help employees to understand and respond to workplace dynamics without the emotional component. Discuss possible outcomes, problem solve and work to determine what the employee wants the outcome to be so they can try to achieve that goal.

Workplace Promotions/ Performance Review and Compensation Discussions: Provide guidance on how to seek a promotion and/or position the employee to obtain recognition. Coach employee for compensation/benefit discussions (i.e., what to request/ how to request it/ what is important to make the employee happy/ who to request from). Support employee in preparing for performance review and submitting proper documentation and with responding to the performance review documentation received. Counsel employee to seek additional compensation and/or benefits and/or perks. Guide employee in sharing this information with the appropriate decision-makers and showing their value to the employer.

Departing Employees:  Counsel employees who want to leave voluntarily or are being pushed to leave their employment. Discuss options re: resignation/ job hunting and replacing position/ transitioning from their role/ becoming a consultant/ option to obtain severance benefits and what those would be/ benefits entitled to/ monies they are entitled to or might be giving up/ retirement option/ restrictions on their future. Discuss next steps for their future and how to get the person to that next chapter.

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