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Helpful Tips for Your Upcoming Holiday Party – A Few Pointers to Protect Your Job, Reputation and Avoid Lawsuits

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. However, bad choices 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 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 in the office, and they will remember what has been said. This is not a time to let everyone know you are unhappy about your bonus for the year, 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 gives 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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New York City Salary Transparency. Does Your Pay Stack Up? Are You Being Paid Fairly? Is it Time to Request Additional Compensation or Look for New Employment?

As of November 1, 2022, all New York City employers, with four or more employees or one or more domestic workers, must include the salary range for any new jobs, promotions or transfer opportunities in any job advertisement. In the listing, the employer must include a “good faith” salary range with a minimum and maximum amount. The amount must be something the employer is willing to pay at the time of the advertisement. The job postings do not have to include benefits (i.e. health insurance, PTO, life insurance, 401K matching or contributions, severance) or any perks they may offer, but may be included if the employer chooses.

To view the salary requirement in job advertisement fact sheet, click here. The fact sheet provides information on what constitutes an “advertisement”, covered listings, covered employers, how salary protections are enforced, among others.

This new pay transparency law allows employees to review postings to determine if they are being paid in line with what is being offered. It also affords employees the opportunity to question the salary they are receiving based on their qualifications and experience and to determine if the compensation elsewhere might be better.

For employees who are unsure if they want to remain in their role, or believe they are not being fairly compensated, or are otherwise disgruntled, the new law may provide answers to many unanswered questions, such as is my colleague being paid more than I am. It may also be the impetus for change.

The new postings may also be a time for reflection. Employees may look to determine what job values are important to them, whether it be salary or flexibility or otherwise. 

If you believe you are not being properly compensated or are looking to make a transition (voluntarily or involuntarily) or want counseling at your current job, contact Sheree Donath, Esq. by clicking here or at sheree@donathlaw.com to determine your options and rights.

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New Employment Contract – What Terms Should I Expect to See in the Agreement and What Terms Should I Request be Added to the Contract?

When an individual receives an agreement, the first thing to determine is if it is an offer letter or a contract. Employees receiving an offer letter may have less negotiating room then employees receiving an employment contract. Why? Because the offer letter is usually pretty simple (1-2 pages) and is generally given just to set out some basic terms (i.e. start date, title, salary). Employees with an offer letter are also generally at-will employees (meaning they can be fired for any reason with or without notice, provided the reason for termination is not improper). This is not to say they cannot negotiate the terms of the offer letter or that the offer letter should be signed without being reviewed by an attorney. It is imperative that all the terms that have been promised to the employee be included in the offer letter before execution.

Employment contracts are generally provided to higher level employees / executives or employees who have negotiated terms that need to be documented. These may be terms that are not offered to all employees.

For employees who receive an employment contract, these are some of the items we would expect to see in an employment agreement. Some of them are straightforward and some leave room for negotiation. The below list should also be reviewed/ used by employees with offer letters or who are interviewing, because its a checklist to help the potential employee understand the terms of their new employment relation.

  1. title and responsibilities
  2. reporting chain – to whom do they report
  3. location of office to which the employee reports and whether the employee is remote or hybrid or will work from home
  4. at will or term contract (and if the latter is it truly the term stated at the beginning of the contract — for example 1 year — or can the person be terminated on 30 days’ notice, making the contract, in essence, a 30 day contract)
  5. salary/ compensation/ bonus/ stock/ equity
  6. sign on bonus – any requirements to stay for a period of time or pay back upon departure
  7. guaranteed bonus or bonus based on performance (and if the latter are there any metrics -to determine the basis for receipt of a bonus). 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/perks/expenses/vacation
  9. notice requirements – any notice required for termination (with or without cause) or if the employee is to resign with or without good reason
  10. restrictions on future employment (non-compete, non-solicitation, non-disparagement) and do these continue if the employee is terminated without cause or only if the employee resigns
  11. any additional documents that will need to be signed by the employee (i.e. non-compete agreement, workplace inventions agreement, confidentiality agreement, etc.)
  12. severance – 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.)
  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 so that all of the terms and promises discussed in the interviews are documented and there is no confusion at a later date.

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. We understand that time is of the essence and will accommodate you (speaking in the evening or weekends) to ensure that the documents are promptly reviewed and discussed with you.

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Are you Quietly Quitting? Is it Time for a Change in Your Employment?

Quiet quitting is a not a new phenomenon but it has recently taken over the news and been brought to many employer’s attention. Rather than resign from their jobs, some employees are engaging in “quiet quitting” or in essence, doing their job while refusing to go above and beyond as they may have done in the past. This may happen all at once or progress over time.

Quiet quitting may be considered by some to simply be employee disengagement or lack of interest by the employee. However, this is not necessarily true. Employees who quietly quit generally perform their primary duties, but do not go above and beyond to assist their colleagues/management, stay late or come in early, do not see it necessary tor attend non-mandatory meetings or gatherings, refuse to perform the job of others (i.e. doing two roles for the same money). Employees are pushing back on being asked to work day and night and are simply performing their roles, during working hours. This does not mean that the employee is not interested in working in the role or for the employer, but generally that the employee wants a work-life balance. Employees who engage in quiet quitting may feel under-valued, unappreciated or at times, taken advantage of. They may not be ready to walk out on their job as they likely need a paycheck and health insurance (and may even like the work they do and/or the company they work for), but are taking the first step to be recognized and to take control of their employment.

Employees who may be unhappy with all or part of their job and that are, or are considering, quietly quitting, may want to consult with an attorney or job counselor to determine the impetus for the change and to determine what other options the employee may have. For example, should the employee resign from their job? Should they seek a transfer? Should they look for alternate employment? Can they be terminated as part of a layoff? Will they receive severance if they depart? Should they find a new job first before leaving? What, if anything, should the employee tell their employer in an exit interview? Is there anything that may hinder the employee’s departure (i.e. non-compete agreement)? Employees have options and should speak with a knowledgeable professional to determine their rights and their obligations and if there is anything that they should be aware of if they choose to quietly quit or leave their employment.

Before taking any action(s) Employees should also consider what job values are most important to them and what their ideal job may be.

Donath Law, LLC can assist you in any transition you are making internally or externally in the workplace. If you would like to schedule a consultation with Sheree Donath, you can do so by clicking here or contacting her at Sheree@DonathLaw.com.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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New Employee Whistleblower Protections Effective January 26, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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