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Some Helpful Links for Employers and Employees as Workplaces Begin to Reopen With Social Distancing Requirements, Among Others

While many businesses will continue having their employees work remotely from home, others will begin bringing employees back to the workplace shortly. In doing so, there are guidelines that employers must follow and information that employees should be aware of upon their return.

The below links are provided to help both employers and employees to know their rights and obligations. These are meant to offer some guidance to the workforce, but is not an inclusive list of resources.

https://www.osha.gov/Publications/OSHA3990.pdf

https://www.dol.gov/coronavirus

https://www.eeoc.gov/coronavirus

https://dhr.ny.gov/coronavirus-discrimination

https://www1.nyc.gov/site/cchr/media/covid19.page

Feel free to contact Sheree Donath for answers to questions that are specific to your rights as an employee and what you can or should expect from your employer.

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What is Your Ideal Job Offer? Rank Your Priorities

Amidst the uncertainty in today’s world, one thing you can do is determine what your ideal job would look like if you had the ability to choose or create that role. Whether you are currently working from home, are working part time or are presently unemployed, now is a good time to reflect upon life and assess what is truly important to you in the future. In doing so, one thing to evaluate is what you want (or expect) from your job or your employer. There are many items to consider. Some of the considerations may be essential and others nothing more than a dream, but ultimately, if you don’t know what you are looking for, then you will never be able to achieve your goal.

So during this period of reflection, take the time and rank your job priorities. Below is an non-exhaustive list of items for consideration. Review them, consider them, then make a list in order of importance to you. This list is not in any particular order and is not meant to sway your decision as to importance. What is valuable to you, may not be valuable to your spouse, friend, relative, colleague, or a stranger on the street. This list is meant simply to assist you in creating your own categorization of what you are looking for in the currently changing world and job market. In creating your list, keep this thought in mind: in order to be truly happy with my job/career, I would like my job to offer … . Now start to create a list that you can use to obtain your goal.

Start your list with, “I am seeking the following from my job/career” and begin ranking your priorities so that you can negotiate these terms into your next offer letter/employment contract.

(a) How are you looking to be compensated? salary, commission, bonuses, equity, stock options, deferred compensation

(b) Will you receive or do you need health insurance?

(c) Are you looking for a flexible work schedule?

(d) Are you looking for the ability to work from home?

(e) Will you be required to relocate yourself and/or your family?

(f) Will you be subject to restrictions on your future employment (i.e. no non-solicitation or non-compete provisions) or will you have the freedom to change jobs?

(g) Are you going to be an at will employee or will you receive a contract with a set term of employment?

(h) Will you receive severance if you are terminated without cause or resign for good reason?

(i) Do you want/need paid vacation time? Paid sick leave? Paid time off?

(j) Are you looking to be a partner? Owner? Employee? Consultant?

(k) Do you want a specific title?

(l) Is this a position with promotional opportunities?

(m) Will you have direct or indirect reports? Do you want to manage others?

(n) Will you receive expense reimbursements?

(o) Are you being offered perks like gym membership, car allowance, monthly stipend, free coffee, etc.?

(p) Will you be working in a collaborative work environment?

(q) Do you have the ability to work on your own and without much oversight?

(r) Is there frequent business travel or no business travel at all?

Remember in making your list, that the above is not exclusive, so do not forget to add additional items to your list that are not listed above but may be extremely important to you.

Click here to contact Sheree Donath to schedule a consultation to obtain assistance in negotiating terms of new employment or if you have received a job offer that you would like to have reviewed, discussed and negotiated.

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Important Information to Understand the Families First Coronavirus Response Act

The United States Department of Labor released guidance regarding the Families First Coronavirus Response Act which goes into effect on April 1, 2020.

For more specific information related to this act, review the questions and answers posted at www.dol.gov/agencies/whd/pandemic/ffcra-questions.

Donath Law, LLC is available to answer any questions that employees have regarding this new act or the current state of their employment. For assistance, contact Sheree Donath at 516-522-2743 or at sheree@donathlaw.

Does Your Employer Have a Policy Prohibiting Workplace Romance or Requiring Co-Workers in a Personal Relationship to Sign a Love Contract?

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In an effort to protect against claims of sexual harassment, conflicts of interest, favoritism, retaliation and to ensure objectivity in the workplace, many employers maintain a policy that prohibit employees from engaging in a personal relationship with each. Other employers are taking a different approach and requiring employees engaged in a personal relationship to sign a “love contract.” So what do each of these mean and what is allowed at your company?

Your Employee Handbook may contain a “non-fraternization” policy. Such policy prohibits employees from engaging in a “office romance”, i.e. romantic or dating relationships, cohabitation, or marriage with a colleague. An employee’s violation of the policy may result in an employee’s transfer or termination. Alternatively, the policy may require that if a personal relationship does ensue, that the employees disclose this relationship to HR. Steps can then be taken by the Company to eliminate any real or perceived appearance of authority between the employees. The policy may allow continued employment by both employees, provided the employer ensures that there is no direct reporting relationship between the employees. If there is a direct reporting relation, the employer may reserve its right to transfer or terminate the employment of one of the employees. Employers may also have policies that limit knowledge of the relationship between the employees in the workplace, i.e. policies that state no kissing, no hand holding, no public displays of affection.

Some employers understand that employees who spend 40+ hours together may result in employees engaging in a personal relationship and feel that having a “no-fraternization” policy is not realistic for their company. Instead these Company’s require that employees in a personal relationship sign a “Love Contract“. A “Love Contract” is also known as a consensual relationship agreement that both employees are required to sign.

Love Contracts require that the employees acknowledge they are in a consensual, romantic relationship and that this relationship will not affect their jobs at the company. The agreement will require the employees to acknowledge the Company’s Equal Employment Opportunity Policy and the Company’s Anti-Harassment Policy. The employees agree not to take actions that will affect the other’s employment either positively or negatively, including not to take actions that will result in a conflict of interest and not to seek a position that would result in a reporting relationship between them. The Company requires the employees to acknowledge that if a conflict of interest is created or determined then one of them may need to be transferred, demoted, resign or be terminated.

Love Contracts also may require, among others, that the employees acknowledge that there will be no acts of favoritism; that the employees agree to notify the Company if the relationship ends; that the Love Contract is confidential and not intended to invade the employees’ privacy, but just to affirm that the employees will follow Company policies; and that if the romantic relationship ends there will be no workplace retaliation of any kind.

Employers have these policies to help protect the employer from potential liability and from claims of sexual harassment and retaliation, among others. Employers are also concerned about what occurs if the employees break-off the romantic relation and one of the two employees is unhappy with the other. The policies established are done with the intent to limit the Company’s exposure, if any.

Employees involved in an “office romance” or considering dating a colleague should find out what the Company’s policy is on such personal relationships.

A Love Contracts is a binding agreement. Just like an offer letter, employment agreement, non-compete agreement, severance agreement, etc. a love contract is a legal document. Any such agreement, should be reviewed and understood before you sign it.

To learn more about your rights at the workplace contact Sheree Donath at Sheree@DonathLaw.com. 

Halloween in the Workplace – BEWARE!!

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 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) 522-2743 or at Sheree@DonathLaw.com to obtain more information to learn more about your rights and obligations at work.

What Can I Ask for When I’m Negotiating a Severance Package?

Employees who receive a severance package should have the document reviewed by an attorney to ensure they understand what they are signing. They can also seek to have the package improved. In doing so, may employees ask for some or all of the below:

  • Additional severance
  • Payment of severance over time or in lump sum depending on what is more beneficial for the employee
  • Health benefit continuation for themselves and family
  • Bonus or pro rata bonus
  • Accelerated vesting of options/equity
  • Return of their personal property
  • Outplacement assistance or money in lieu of outplacement
  • References or a departure statement
  • Mutual release
  • Mutual non-disparagement
  • Release from, or limitations on, non-compete or non-solicit provisions
  • Expense reimbursement
  • Removal of any mitigation of severance offer language
  • Modification of the agreement language

For more information about your rights and options and to determine how you may request some or all of the above items, contact Sheree Donath to schedule a consultation.

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What Terms are Generally Found in a Severance Package?

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.

Fired? Downsized? Laid off? Let go? Terminated? Can I Get Severance?

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.

Is a Non-Compete Agreement Enforceable? How Will it Impact Me if I Sign it?

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.

My Employer Gave Me a Retention Agreement. Should I Sign It?

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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.