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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Is your New Year’s Resolution to make changes in your job and/or career? Have you reached that point in your job that you say enough is enough? Are you considering just quitting? Do you feel that you have no alternative but to resign?   If your New Year’s Resolution is to resign from your job – pause and read the following. There are many reasons NOT to resign from your job without a new job and careful consideration and some strategic thinking.   For example, have you considered the following: (a)  What is the best time to resign for you and your family? (b) Do you know how much notice you must provide to your employer? (c) Are you due to get a bonus? If so, must you be employed on the date bonuses are distributed to receive it? (d) Is your family’s health insurance through your employer? If so, do you know your rights to COBRA or do you intend to obtain health insurance from a new employer? (e) Have you signed anything that will restrict your future employment like a non-compete agreement, confidentiality agreement or inventions agreement? (f) Do you have any issues to resolve with your employer prior to your departing? (g) Have you already obtained alternate employment? (h) Are you resigning for new employment, to make a lifestyle change or because your employer is pressuring you to leave?   Besides the above factors, it is important to know that resigning from your job may in many situations preclude you from obtaining unemployment benefits.   Prior to resigning from your employment it is important that you understand your legal rights and to determine if you have any legal claims against your employer for the way you were treated during your employment. Might you be entitled to severance based on your employer’s plan, past practice or because it may make good business sense for your employer?   Additionally, it is important to have any agreements you signed reviewed so that you understand your continuing obligations to your employer. For more information or to speak with Sheree Donath click here.

New York law requires that employers provide a notice that an employee may be eligible for unemployment benefits to any employee whose employment has been terminated or whose scheduled working hours have been reduced. The notice is to be in writing and given to the employee within five (5) working days.

The notice of eligibility shall be given at the time of each permanent or indefinite separation from employment, when there is a reduction in hours, when there is a temporary separation and any other time there is a interruption of continued employment that may result in partial or total separation.

The notice shall contain certain information as required by the Department of Labor. For more information, click here.

For those employees undergoing a job transition, (i.e. departing voluntarily or involuntarily), they should make sure that they have received all payments and benefits to which they may be entitled. For more information or to have your severance package reviewed, if applicable, contact Sheree Donath, Esq. to determine your rights and to understand any continuing obligations.

For a list of services offered, click here.

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Donath Law, LLC offers guidance on navigating through the intricacies of the workplace. Whether it be daily interactions in the workplace or a job transition that is occurring voluntarily or involuntarily, we can help guide you in your next steps.

Job Transition: Offering guidance in determining your ideal new job and what factors to consider in making a job transition, including without limitation: termination vs resignation, compensation factors, flexibility, possibility of obtaining severance and/or enhancing any severance offer; job responsibilities and title; perks, relocation, benefits. Review all documentation related to the current and prospective roles to determine rights and obligations of the departing employee. Review employment agreements to ensure the employee is protected on the way into the new role.

Performance Plans: Review and evaluate the performance plan. Empower the employee to respond to the plan provided. Determining if this is a valid performance plan; helping you to respond to the plan; determining the timeframe of the plan prior to termination; discovering there are proper metrics and if they are achievable; deciding whether you want to try and perform under the plan or would it be better to exit the company possibly with severance.

Workplace Conduct/ Behaviors/ Investigations/ Discrimination: Monitor and guide daily workplace interactions. Assist in determining whether conduct rises to something improper and/or illegal and to take action as necessary. Counsel employees on how to respond to work related situations. Coach employees to push back when they have true workplace concerns. Prepare employees for meetings with colleagues, supervisors, HR. Help employees to understand and respond to workplace dynamics. 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 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/ what their U5 may report/ 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.

For more information or to obtain assistance, contact Sheree Donath, Esq. by clicking here.

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