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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Special project assignments are often a negative. Unless the special project is offered to an employee as an additional responsibility, it generally means that the employee’s employment will be terminated shortly.

If the special project is one in which the employee’s knowledge and skill are a perfect fit for the assignment then, generally, the employee taking on this task does not put them at added risk of termination. Instead, the employee is being given added responsibilities and not being removed from all other aspects of their role. In this instance, the special project may be considered an accolade or a stepping stone to a promotion. This is not the typical scenario. Rather, an employee is usually assigned a special project in lieu of their regular job functions, which is likely a path to termination.

Why would a special project be considered a path to termination?

Special projects when offered to employees and not alongside an employee’s current role and responsibilities may mean that there may not be another “special project” to place the employee on after the project has been completed and the employee’s “regular” role may have been filled by someone else or distributed amongst several other employees. At the end of the special project, there may not be a new project to place the employee into. The employee also may not have the ability to return to the original role or a role to similar to the one that the employee was handling prior to engaging in the special project. This may have been done purposely so as to create a situation in which there is no role left for the employee and the only possible avenue is departure.

Special projects are often used to minimize the employee’s interactions with their co-workers. Similarly to implementing a performance plan, special project assignments are used as a mechanism by managers to create a path for termination of an employee that they want to remove from their team.  Assignment to a special project customarily creates a situation in which the employee is excluded from meetings, emails, team building, daily interactions, events, communications, etc. Valuable employees that managers wish to retain, are kept close and are made to feel valued in an effort to prevent the employee from seeking employment elsewhere. Special projects are a way to create distance between employees and their team.

Like musical chairs, there may not be a seat for the employee when the special project ends. Without a new project and without the employee’s original role, there is likely no option but to terminate the employee’s employment.

Special projects may be used to target, among others, older workers; employees who complained of discrimination or retaliation or raised concerns about a toxic work environment; or to move employees that the manager seeks to terminate to an isolated role. Many times, the goal of a special project is to ostracize the employee or make the employee feel uncomfortable or targeted so that the employee quits and the employer does not have to terminate their employment.

If you have been assigned to a special project, or asked to consider taking on a special project, reach out to Sheree Donath, Esq. at sheree@donathlaw.com – Attorney and Workplace Tutor – to find out the questions to ask, your rights, options and to prepare for your possible voluntary or involuntary termination.

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There are specific terms that should appear in an employment contract or offer letter. Some provisions are easily discernible while others may be more vague. Employers believe you to be valuable at the time of hiring. As such, it is best to incorporate as many terms and specific provisions into your employment documents prior to signing your employment contract or offer letter and before commencing employment/ giving notice to your current employer, if applicable.

See checklist below. This checklist, however, is illustrative and not a comprehensive list and is not applicable in all instances. It is best, to have the document(s) reviewed by a qualified professional who can also assist you in how to seek to incorporate these points into your documents if they are not already set forth within and if they are applicable to the role you are seeking.

1. Job Title and Job Description: Is this clear? Can the Company change this at any time with or without notification to you? What happens in they do? Is there any remedy to you?
2. Reporting Chain: to whom do you report; is there both a direct and indirect reporting chain? Are you going to have direct reports reporting to you?
3. Office Location: will you the employee is remote or hybrid or will work from home and if in office, where is the office that the employee is expected to be in
4. Term or At Will: If a term contract, is it truly the term stated at the beginning of the contract — for example 1 year — or can you be terminated on 30 days’ notice, making the contract, in essence, a 30 day contract
5. Compensation Package: Salary, Bonus(es), Commissions, Incentives, Stock, Equity – Is this what was agreed upon? Is the new company buying out deferred compensation? Is there a portion of bonus paid in cash and a portion paid in stock? Is there a vesting schedule? If starting after the fiscal year commenced will you receive a pro-rata bonus for the year? Will you receive a pro-rata bonus if terminated without cause prior to bonuses being paid?
6. Sign on Bonus: any requirements for you to stay for a period of time or pay back upon departure? Are there any claw backs?
7. Guaranteed Bonus or Bonus Based on Performance: If pay based on performance, when will you receive the metrics that you must achieve? Is the bonus to be paid now or as deferred compensation and will it be paid in cash or part in stock/equity and is there a vesting schedule?
8. Benefits: What benefits are you entitled to? When do they start? Do they include health benefits, 401K with or without a match, vacation, PTO, sick time, short/long term disability, lactation breaks, bereavement leave, etc.
9. Notice Requirements: Do you have to give a set amount of notice if you will be resigning? Does the company have to provide you with any notice if they are terminating you without cause? Can you resign for Good Reason and if so what are the requirements to do so?
10. Restrictions on Future Employment: Do you have a non-compete, non-solicitation, confidentiality agreement and do these continue if the employee is terminated without cause or only if the employee resigns. Also, do you have any of these documents with your current employer and if so does that impact your going to this new role? Does the new employer know about your current restrictions?
11. Additional Documents: What will you need to sign on the first day or shortly after starting employment: non-compete agreement, workplace inventions agreement, confidentiality agreement, acknowledgement of the Employee Handbook, commission plan, arbitration provision, etc.
12. Severance – This is generally found in executive agreements and may apply if the employee is let go prior to the end of the term or if the employee resigns for good reason. Any severance may require the employee to sign a release of claims and the contract may state what the employee might be entitled to (i.e. salary, benefits, expenses, bonus, etc.). This should be negotiated with the contract, if possible, as a no less than benefit.
13. Relocation Benefits – what are offered, any requirements to stay for a period of time, or repayment. Possibility of re-relocation benefits at a later date.

Individuals who receive new employment agreements should have them reviewed by a legal professional, prior to execution, so that all of the terms and promises discussed in the interviews are documented and to prevent a lack of clarity at a later date. Everything is negotiable. Employers will likely state that this is their standard documents, however, if they truly want to hire you, the employer will be open to discussion on certain points.

The above list is also the key points but does not delve into any legal language that may also need to be clarified.

Contact Sheree Donath at 516-804-0274 or Sheree@DonathLaw.com for assistance in having your employment contract or offer letter and the accompanying documents reviewed. As time is of the essence, you will be accommodated (speaking in the evening or weekends) to ensure that the documents are promptly reviewed and discussed with you and that you can then respond quickly to the potential new employer.

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The holiday season is here and that means for most companies, a Holiday Party. Generally meant to boost morale, holiday parties can also result in trouble for the employee and the employer. It is important that you do not let holiday 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 his/her 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) 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.

(5)  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.

(6) Review company policies. Remember that the holiday party 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 holiday 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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If you find yourself in one of the below situations, I urge you NOT to resign but to first speak with someone about your options. You do not have to wait until you have been fired to take action.

Here are some signs that your JOB MAY BE IN DANGER!!!!!!!!!!!!

• Have you recently received a performance warning? Was the performance warning for something that was previously considered inconsequential and/or are you being disciplined for something that others are also known to be doing but they are not also being given a warning? When performance warnings are given inconsistently, it may be a sign that the company is making a written record to terminate you.

• Have you recently received a bad performance review and or been placed on a performance improvement plan or performance action plan and given a certain number of days to try to improve your performance? At times, even long time employees, are suddenly placed on performance plans, or for the first time in their career they are given a poor performance warning. This is a sign that your employer may be looking to terminate your employment rather than assist you in improving your performance. As you will see in these documents, the metrics are generally impossible to achieve.

• Have you been placed on a special project? Special projects when offered to employees and not alongside an employee’s regular role may mean that there may not be another “special project” to place you on after the project has been completed and your regular role may have been given to someone else. At the end of the special project, without a new project and without your old position, there is likely no option but to terminate your employment.

• Have you been excluded from meetings, events, emails, communications? Being excluded from even a few of these could mean that you are being kept out of the loop for a reason. If you are feeling ostracized it is more than likely that this is not just a feeling and there may be a basis for this feeling of uneasiness. Valuable employees that are going to be kept on, are kept close by, so that they don’t seek employment elsewhere. Usually when an employee is being excluded by management, it is because that person may know the employee is on the list for termination and the manager may be uncomfortable with the person being in the meetings and/or not sharing the decision with the employee until the manager gets the green light to do so.

• Has there been a change in control or are you working for a new manager? Has the organization been purchased or a a new executive staff, manager been brought in to oversee your department or role. Did two companies merge and now there are two people doing the same job? A change in control, merger, or new manager may mean that the new regime may want to bring in or retain their own people. This leads to possible redundancy and your position could be terminated as a result.

• Are there rumors of layoffs or a restructuring? Have you been kept in the loop as to the selection process. Are you told that your team is okay but you know there are cuts being made throughout the organization? It is possible, even if you are assured otherwise, that your position is the one that is being terminated especially if people do not want to discuss the upcoming layoffs with you where previously you would be integrally involved in the discussions.

• Have you made complaints of discrimination, impropriety, workplace misconduct, bullying, etc.? If you were recently involved in starting or participating in a workplace investigation your role may also be in jeopardy. While employers are not to retaliate against employees who speak out or engage in these processes, it is possible that an employer will try to include you in a large layoff or place you on a performance improvement plan a few months after you voiced your concerns.

To understand your rights and options and/or to obtain guidance on how/if you should take any action, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

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Many Companies use Performance Improvement Plans, also known as a PIP or a Performance Action Plan, or a final written warning as a basis for terminating an employee. They are also used in an effort to push the employee to resign from employment thereby potentially denying the employee of items to which the employee would be entitled if they remained employed (i.e. bonus, vesting, matching, commissions, promotions, etc.). At times the employee is offered a severance package in lieu of moving forward with the action plan.

The employee is given a written document outlining the supposed issues with the employee’s performance and a set amount of time to supposedly fix or “cure” the problems with the employee’s performance. The written document sets forth the goals that must be met in order for the employee to keep their job. The document generally comes after the employee has received a written performance review. These poor performance reviews are generally given for the sole purpose of placing the employee on a performance plan (click here for more information on this topic).

So what should an employee do if they receive this type of plan/warning? Do they have any options?

Yes, employees should not simply accept the performance plan they have received. In fact, many times, these plans are given to long-time employees who have previously been top performers, but have recently objected to some apparent impropriety or violation of law. They are used to create a paper trail – a record – for termination of the employee who the employer would otherwise not have any reason to terminate.

Employees should take the following steps, among others,

• review the document given;
• sign acknowledging receipt only and not agreement with the content;
• be prepared to provide a written response;
• question the goals that have to be met: are they objective or subjective? can they truly be met?
• determine who will be deciding if the employee meets the terms;
• determine the timing to do so;
• find out what happens if the employee does not meet the goals;
• speak with legal counsel to determine if the employee has legal recourse for receipt of the performance plan and the employee’s rights and options

EMPLOYEES CAN TAKE ACTION WHILE THEY ARE STILL EMPLOYED AND DO NOT HAVE TO WAIT UNTIL THEY HAVE FAILED ON THE PERFORMANCE PLAN OR ARE FORCED TO RESIGN!!!!

Employees should not wait to seek counsel or assistance. If you have received a Performance Improvement/Action Plan or final warning and want to determine how you should proceed, contact Sheree Donath to schedule a consultation.

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Do you need assistance navigating daily workplace interactions, dynamics, job politics with your colleagues and/or your managers?

Do you believe that your performance review is inaccurate and/or were you put on a performance improvement plan that you believe to be unwarranted or insurmountable?

Are you unhappy in your current role as a whole or with parts of your role and responsibilities? Are you bored with the work you are doing?

Do you want to request a transfer, promotion or are you considering leaving the company?

Do you need assistance requesting additional compensation, bonus, benefits and/or perks?

Do you think that you are being targeted for termination either as part of a layoff or just as a one off firing?

Do you feel that you are working in a toxic or bullying environment and that there is no way out?

Do you understand, and have you received, the policies that apply to your workplace?

If you answered yes to one or more of these questions, then you may want to seek assistance to determine if it is time to transition to another role or if there is a way to modify your career trajectory at your current employer to a path that is more suitable to your needs and wants.

Donath Law, LLC offers guidance and job coaching with a legal perspective while empowering individuals to take charge and navigate their own career path.

Donath Law, LLC offers the ability to obtain job coaching as needed, whether it be just one time or daily, weekly, or monthly, etc.

No one should be unhappy at work or with their job or feel like they are at a loss with no where to turn. For more information about your options, contact Sheree Donath, Esq. at sheree@donathlaw.com or by clicking here.

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On April 23rd the Federal Trade Commission (FTC) announced a rule that bans non-compete agreements. This rule is to go into effect in 120 days. For the FTC non-compete rule fact sheet, click here.

The goal if the ban is to protect worker’s fundamental freedom to change jobs, increase innovation and foster new business formation.

Non-compete agreements impose conditions on workers that make it difficult for them to leave their jobs, obtain new jobs or start a new business. As a result, people are forced to switch industries, relocate, take lower paying roles, leave the workforce, delay the onset of starting a new business or engage in costly litigation.

Under the new rule, once it takes effect, existing non-competes for senior executives will still remain enforceable, but employers will be precluded from entering into or attempting to enforce any new non-compete agreements. Per the FTC rule, senior executives are those that earn more that $151,164 annually and who are in policy making positions.

Employers are required to provide notice, other than to senior executives, that they will not be enforcing the non-compete agreements. The FTC has provided model language (in various languages) that employers can use to notify its workers. Click here to see this language.

Contact Sheree Donath, to understand your agreements, including those with non-compete language. These documents are important when making a career transition and should be reviewed and understood as sometimes they are not stand along documents and other provisions may still apply.

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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? 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@donatlaw.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 SHOULD TAKE ACTION AND WORK THROUGH THE PERFORMANCE IMPROVEMENT/ ACTION PLAN AND MAKE IT WORK FOR THEM!

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 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.

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. Even if you decide to accept a severance package, you should generally not agree to resign from your employment.

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 have already worked hard for and earned and are denied such payment(s).

Moving forward on the performance plan, while stressful, allows you to continue getting a weekly paycheck and benefits (if you have these through your employer) for you and/or your family for at least a set period of time.

There may be changes in the company while you are on the 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 it may seem like you have been targeted and/or that obtaining the goals in the performance plan is a moving target and 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.

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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