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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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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Severance packages may contain mitigated severance. What this means, is that the company is offering to pay you a set amount but may reduce that amount by any compensation, benefits, bonus that you may receive from another source. For example, should you do any work, whether it be part-time, full-time, as a consultation or in any other capacity, then you would be required to report that to your former employer and share with your former employer the payments/benefits you received for your services. At times, acceptance of a new offer may result in a forfeiture of your remaining severance.

Mitigated severance is problematic. A few of these include:

• It potentially limits your collecting payment/benefits you were offered when you signed the severance agreement.
• It may open you up to potential liability. For instance, employees who have restrictive covenants, are not reporting to their former employer information about their new current employer. This provides notice, of possible or perceived violations, that your former employer may not have obtained on their own after your departure.
• It may deter you from seeking alternate employment opportunities during the duration of your severance period.

Severance packages should be reviewed prior to execution to ensure that you understand the terms within, what rights you may be giving up and any obligations you may have moving forward.

For more information on your rights and options, or to see if your severance offer can be negotiated and/or enhanced, contact Sheree Donath, Esq, at sheree@donathlaw.com or by clicking here.

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On September 17, 2023 New York’s Pay Transparency Law went into effect. This law requires that employers with four (4) or more employees must include a “good faith” salary range in all external job postings, as well as internal postings for transfers and promotions. The law applies to employers posting for jobs physically in New York, as well as remote jobs or jobs located outside of New York that report to a supervisor, office or other work site in New York.

The “good faith” salary range must include the minimum and maximum annual salary or hourly range that the employer believes in good faith to be accurate at the time of the posting. Jobs that are commision-based must clearly state this in the advertisement.

Employers are prohibited from including other forms of compensation or benefits, including health insurance, retirement plans, PTO, vacation time, tips, etc. within the range of pay. Rather, employers may list these items as additional perks of the role.

The job description for the job, transfer or promotion shall also be posted, provided that their is a job description for the role.

Click here to obtain a fact sheet from the Department of Labor regarding the Pay Transparency Law.

The goal of the pay transparency act is to create pay equality.

A complaint for failure to comply with this law can be made to the Department of Labor who has the authority to impose civil penalties. Employers are also prohibited from retaliating (i.e. without limitation, refusing to interview, hire, promote, employ) against an applicant or current employee who has exercised their rights under this new law.

For more information on your rights and options or for assistance navigating your employment relation, contact Sheree Donath, Esq.

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The Pregnant Workers Fairness Act requires “covered employers” to provide “reasonable accommodations” to known limitations related to pregnancy, childbirth or related medical conditions. A covered employed must do so, provided that the accommodation will not cause the employer an “undue hardship”.

Some examples of the reasonable accommodations to be offered include: ability to sit or stand during the work day; receive closer parking; receive additional breaks to eat, drink, rest and/or use the bathroom; receive appropriate sized uniforms and/or apparel; be excused from strenuous activities; be excused from activities that would expose the individual to compounds not safe for pregnancy; among others.

An employer does not have to grant accommodations under the PWFA if it poses an “undue hardship” to the employer. Meaning, a significant difficulty or expense to the employer.

“Covered Employers” are private and public sector employers with at least 15 employees.

The PWFA prohibits the employer from denying a job or employment opportunity to a qualified employee or applicant because that person would need a reasonable accommodation. It also prohibits an employer from requiring an employee to take a leave of absence if a reasonable accommodation can be provided. An employer cannot interfere with an employee’s rights under the PWFA. Additionally, an employee cannot be required to accept an accommodation without a discussion first occurring between the employee and the employer. Furthermore, an employer cannot retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding or investigation.

The EEOC will be issuing regulations regarding the PWFA. The EEOC is accepting charges under the PWFA provided that the claims occurred on June 27, 2023 or thereafter. To see additional information on the EEOC website and/or to find out more information about filing a charge, click here.

Contact Sheree Donath, Esq. if you would like to learn more about your rights under the PWFA; need assistance requesting an accommodation; need job coaching or have general questions related to your employment.

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Are you thinking about making a change in your employment? Before taking the plunge, here are a few pointers to consider:

Do – Be Prepared: Get your resume in order. Make sure that it is updated with the latest role that you are working in and include the details of the role. Tailor your resume to the specific job. You may need several versions. Ensure that the resume is in a format that is acceptable to the industry that you will be applying to work in. Make sure you are knowledgeable about everything that is on your resume and are prepared to speak about them. If needed, have available, among others, writing samples, references, portfolios, appropriate interview attire, a quiet and appropriate location for a zoom interview, transcripts, and
licensing information.

Don’t Job Search While Using Your Current Employer’s Work Property: Do not use your work computer or work property for your job search. Do not send resumes from your work computer, your work phone, etc. Do not update, format, print and/or copy your resumes while at work. While it is understandable that the job search is difficult to do on your own time and using your own devices, your current employer can see what you are doing if you use their resources. Doing so may result in your being terminated prior to your being ready to depart from your employment, among other negative consequences.

Do -Make a List of Job Values: If you are going to be leaving your employment, you should know what it is you are seeking. Whether it be more money, flexibility, benefits, higher title and/or greater responsibility, travel, relocation, etc. making a list, in order of importance to rank your job priorities, may help you locate and land the role you are looking to find.

Don’t Take Proprietary Information: Regardless of whether you signed any documents limiting your future employability, you are not entitled to take with you any of your current employer’s trade secrets or proprietary information. Doing so may result in a lawsuit against you and if used, then a lawsuit against your new employer. Many companies monitor employees’ keystrokes, emails, print history and can see what items have been accessed in the company files and whether these are appropriate items. Additionally, while employed and/or upon departure many employers require employees to return, destroy and/or delete all company files and communications that the employee may have in their possession from work done outside of the office.

Do -Know if you Have Any Limitations: At the onset of employment and while employed, many employees are required to sign documents that may limit their ability to work or perform certain services for their next employer. Examples of these documents include, without limitation, non-compete agreements, non-solicitation agreements, confidentiality agreements, workplace invention agreements and/or may be found in certain stock agreements. Knowing your limitations and being able to share these with any prospective employer, may prevent unnecessary lawsuits and/or termination.

Don’t Resign Without Having a New Job: While there are many reasons that employees may want to leave their employment, generally, it is best not to resign from your employment until you have secured new employment. This does not mean that employees should resign during the interview process. Rather, it means after you have accepted employment and all background contingencies have been met. Many employers believe employees are more valuable if they are presently working. While this is not always possible, and in the current employment landscape, there are numerous layoffs (which are easily explainable), if you are able to control the timing of your departure, make sure that everything is finalized before you tender your resignation. It may seem easier to find new employment if you resign, but that is not always in your best interest. Of course, there are different situations in which resigning may be the best course of action for you (i.e. bullying bosses, discrimination, retaliation, toxic work environments) and in which you have no choice but to resign without a new job, but the general consensus is that, when possible, it is better to be employed when seeking new employment so that there is no unnecessary gap on your resume that has to be explained away.

Do– Know What You May be Entitled to Upon Your Departure: When you resign from your employment, the timing may be important. In certain situations, it is best not to resign (and even give notice of your intention to resign) until after you have received your bonus or stock has vested. There is consideration to be given as to whether you will be paid PTO or vacation time or if this should be used first. Also, if you are receiving benefits, the timing may mean another month of paid benefits versus termination of benefits on the date of resignation. The Company’s policies on each of these should be reviewed before notice of resignation is given.

Don’t Consider a Counteroffer: Counteroffers are generally not beneficial. People get nervous about departing and Company’s may be in a bind, so a counteroffer is tendered. However, remember there was a reason you wanted to leave and now the Company knows that you are unhappy. For more information on why you shouldn’t accept a counteroffer, click here.

Do Get Advice and Create a Plan: If you are considering a job transition, you may want to speak with a coach or a lawyer to help you on your journey.  Aside from the above, there are questions like: Should you receive severance? Do you have any possible claims against the Company? Will there be an exit interview for you to attend? For guidance, job coaching or counseling, assistance with your transition or just more information contact Sheree Donath.

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Employees often decide that it is time to make a change in their employment. There are usually a variety of reasons that lead to doing so. They take the time to look for another role, interview, and receive an offer. Most are happy to move on, give their notice of resignation and start their new job. However, at times, after the employee gives their notice of resignation, the employer may provide the employee with a counter-offer to consider, generally an offer of more money if the employee will remain with the company. The question that the employee then poses to me is, “Should I accept the counteroffer?”

From my perspective, accepting a counteroffer is generally a bad idea. Sure, at times it can work out for the minority of people, but mostly, there are various reasons why an employee should NOT accept a counter-offer.

A few reasons include:

The impetus that pushed the employee to look for new employment will likely still be a problem, even if the employee is paid more. Most people don’t seek to leave their employment simply because they want to be paid more. It does happen that employees are looking for higher pay, but there is generally a factor that pushes the employee to take the time to seek new employment and make that move. In particular, the employee is not being promoted or considered for a title/role they want to be in; the employee feels that they are in a toxic work environment with a bully boss or bullying co-workers; there is a lack of resources or support; the employee is doing the work of more than one employee; the company is having financial problems or going through a downsizing; there isn’t work/life balance or a flexible work schedule; the employee didn’t like the culture of the company and/or wasn’t being valued.

The company knows the employee is looking to leave. While the employer may do anything necessary to keep the employee initially, the employer is aware that the employee was seeking alternate employment. This may result in the employer/manager/team questioning the employee’s loyalty and may make the team/manager uncomfortable with keeping the employee. The employer may also start to question whether the employee is still looking for a better offer.

The employer may use a counteroffer as a stalling tactic. Whereas an employee may feel valued because the employer made a counteroffer for the employee to stay, it could really be selfish motivation that resulted in the counteroffer. A counteroffer may be given to stop the employee from leaving at that moment. However, once the employer is in a position (on the employer’s own timeframe) that the employer can replace the employee, it is likely that the employer may do so and the employee will be terminated. The employer can then replace the employee at the pay scale that the employer was looking to pay and not the compensation that the employer was forced to pay to keep the employee. The employee will then be out of work without the possibility of the new role as the new company will not be eager to accept the employee after the employee turned down their job offer to stay with their old company.

The employee may miss out on a great new opportunity and a better career trajectory by accepting a counteroffer. The new job offer may be what the employee needs for themselves, their family and/or their career. Whether it be more money or a lateral move into a different role and responsibilities, there was a reason that the employee was seeking new opportunities. This shouldn’t be discounted by receiving a counteroffer.

An employee should determine their job values. An employee looking to make a transition has taken the time to determine what is important to them. The employee should not lose sight of this or their job values because of apprehension to make a move. The employee should focus on this new chapter, embrace it and take the necessary steps to accomplish their long-term (or short-term) goals.

Sheree Donath, Esq. can assist you if you are looking for career transition assistance, coaching, and/or the reviewing of documents. Click here or send me a message for further information and/or to schedule a consultation.

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