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.
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 is a time for fun. But what does that mean when you are at work? Halloween in the workplace can beverytricky 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.
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:
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
Release from, or limitations on, non-compete or non-solicit provisions
Removal of any mitigation of severance offer language
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;
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
Receipt of severance may
depend on several items, including among others:
the Company has a severance plan
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
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.
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
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.
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
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.
Anyemployee departing from employment, voluntarily or
involuntarily. shouldhave 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
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
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.
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.
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 some
money is better then no money. Even if you decide to accept a severance
package, you should make sure that you are not resigning from your employment.
Employees that quit may also lose out on unpaid bonuses and/or
unvested stock, among others. 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.
Moving forward on the performance plan, while stressful, allows
you to continue getting a weekly paycheck and health 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.
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
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. There are various ways to proceed based on what is best for you and/or
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
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.