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

flower-chocolates.jpg

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

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

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

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

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

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

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

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

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




Halloween in the Workplace – BEWARE!!

Halloween is a time for fun. But what does that mean when you are at work? Halloween in the workplace can be very tricky and not much of a treat.

If you are going to wear a costume to work, be mindful of the following items, among others:

  • costumes should not be sexy or provocative;
  • costumes should comply with workplace dress code policies;
  • costumes should comply with workplace anti-harassment and anti-discrimination policies;
  • costumes should not be inappropriate;
  • costumes should not be religious;
  • costumes should not be offensive to others;
  • costumes should not be so realistic or scary that they may result in health issues to others; and
  • costumes should comply with all safety requirements of your office

Keep in mind that Halloween is a religious holiday. As such, some employees may not want to participate in a Halloween party, costumes or events because of their religious beliefs. Employees should not be mandated to attend any Halloween parties or events or made to feel bad about their decisions. Employees should not be retaliated against for their non-attendance on Halloween or afterwards. Employees should not be harassed by colleagues or their supervisors to attend these events.

Employees should be reminded of all company policies prior to Halloween as Halloween events and parties could result in legal claims of, without limitation, sexual harassment, discrimination, retaliation, overtime, worker’s compensation.

Employees who believe they have been treated in an inappropriate or illegal manner should immediately report the conduct as required by their employer. They may also want to consult with an attorney to find out more about their rights and options and to determine if they can take legal action, if they so choose. Contact Sheree Donath at (516) 522-2743 or at Sheree@DonathLaw.com to obtain more information to learn more about your rights and obligations at work.




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

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

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

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

(Attorney Advertising)




What Terms are Generally Found in a Severance Package?

Employees departing from a job (voluntarily or involuntarily) may
receive a severance package. Why? Because the Company has decided that it
is in the Company’s best interest to have the employee sign a document with
certain specific terms that are protective to the employer. Some Company’s have
a severance “policy” while others believe offering employees
severance makes good business sense. Regarding the latter, many Company’s feel
that in providing employees severance (sometimes even a minimal amount of pay),
the employer is generally obtaining peace of mind that the former employer will
not raise any claims in a government agency or in court against the employer.

So what terms are generally found in a severance agreement? Below
are just a few of the many terms that can appear:

* Consideration – the amount the employee is to be paid in
severance, the payment structure and possibly payment of employee’s health
insurance or COBRA;

* General Release of Claims – employee to release the
company (as well as its directors, officers, parent, subsidiary, etc,) from any
claims from the beginning of the world until the date of signature;

* Confidentiality – employee’s agreement to keep the terms
of the severance offer and the circumstances of their departure confidential;

* Non-Disparagement – employee’s agreement not to disparage
or say anything bad (verbally or on social media) about the employer (officers,
directors, parent subsidiary, etc.);

* No Re-Hire – employee agrees not to seek employment with
the employer (parent, subsidiary, etc,) at a later date;

* Cooperation – employee agrees to cooperate with the
employer should employer need transition assistance or if the employee has
information the employer needs at a later date;

* Non-Compete / Non-Solicitation – employer restates any
continuing obligation the employee has previously agreed to by written document
or establishes new terms that the employee is being asked to agree to in
conjunction with the signing of the severance agreement;

* Choice of Law/ Arbitration – employer sets out what Court
and what law applies to the agreement and/or the requirement that the employee
arbitrate any claims that may be raised;

* Effective Date of Agreement – the agreement will set forth the time period the employee has to review the agreement and whether the employee can revoke their signature;

* Right to Consult with Counsel – the agreement should state that the employee has a right to have the document reviewed with an attorney prior to signing the agreement. A severance package is an enforceable legal document. Any employee who receives a severance package should have the agreement reviewed prior to signature so as to understand the terms within, if there is any opportunity to increase the offer and what, if any, concerns the attorney sees regarding the language in the agreement and the basis for the employee’s termination / resignation.

Click here to schedule a consultation with Sheree Donath to have your severance package reviewed or learn more about your rights and options as an employee or former employee.




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

Employees often want to
know if there is a difference between being told they are fired, told they are
being laid off, let go, downsized or terminated. In some instances there are,
but in other instances, regardless of the terminology, fired is fired. Regardless
of the word that is used for your departure, you will no longer be employed at
your current employer and you will need to seek new employment. The questions
that generally stem from there include when will my salary be paid until? When
will my benefits end? Will I receive unemployment benefits? Do I have any
restrictions on my employment? And will I be given a severance package on the
way out?

Receipt of severance may
depend on several items, including among others:

  • whether
    the Company has a severance plan
  • whether
    you are the only person being terminated as a one-off termination or whether
    you are part of a larger group of employees being let go as part of a layoff
  • whether
    your departure is based on your
    performance review
    or in response to a
    performance improvement plan
  • whether
    the Company is closing a portion of the company requiring the Company to
    provide written notice and payments for a set period of time (i.e. WARN
    notices)
  • whether
    you have been terminated with
    or without cause
  • whether
    the Company is concerned about your departure and wants you to sign an
    agreement releasing any claim(s) you may have raised or could raise against
    them
  • whether
    the Company wants you to sign a
    non-compete agreement

To learn more about what
Why
you Should have Your Severance Package Reviewed Before Signing
, click
here

If you have been fired,
downsized, laid off, let go or terminated you should speak with an attorney to
find out your rights and obligations. If you have received a severance
agreement or believe you should have received one,
contact Sheree Donath to have your document reviewed.




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

YES! Non-Compete
Agreements are generally enforceable in New York.
It is in essence a chess game between the
employer and employee and/or the employer and their competitors. Unfortunately,
many employees are pawns in the “game” and are harmed because they
are not educated on their rights and options.

Non-Compete provisions
can be found in a stand alone Non-Compete Agreement or within various
documents, including, among others:
Employment
Agreements
, Severance
Agreements
,
Confidentiality Agreements,
Relocation
Agreements
,
Workplace Invention Agreements, Bonus Agreements, Deferred Compensation
Agreements,
Retention
Agreements
,
etc. .

A Non-Compete Agreement
is a
legally binding
contract
and should be reviewed
by an attorney prior to your signing the document. it may be presented at the
onset of your employment in your onboarding documents, during the tenure of
your employment or upon your voluntary or involuntary departure from
employment.

Employers may use a
Non-Compete Agreement to bind employees and to protect against their employees
going to work against them for their competitors.

Employers may have an
employee sign a Non-Solicitation Agreement. This can, in fact it often is, the
same as a Non-Compete Agreement.

Some employers require
all employees to sign a Non-Compete Agreement and some employers only have key
employees sign these documents.

Non-Compete
Agreements
may
impact your ability to transition to a new job. You may be required to disclose
the terms of your Non-Compete to a potential new employer (even if the job is
not the same or similar) and this may prevent you from obtaining new
employment.

Any employees who receive a Non-Compete Agreement
should
have the agreement
reviewed by an attorney prior to signing to determine if there are any terms
within the agreement that can be removed or negotiated.

Any employee departing from employment, voluntarily or
involuntarily. should
have the agreement reviewed by an attorney prior
to making any transition to understand their rights and obligations and to
determine if the terms of the agreement apply to potential new employment
and/or if there is any room for renegotiation of the terms upon the employee’s
departure. A non-compete provision may effectively put the employee on the
bench for a period of time and impact your ability to obtain new viable
employment.

If you have received
or have already signed a Non-Compete Agreement or an agreement that contains a
non-solicitation or non-competition provision(s) contact
Sheree
Donath
to have your document
reviewed.




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

money_parachute.jpg

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.




My Employer Placed Me on a Performance Plan. Should I Quit or Stay and Try and Achieve the Plan’s Goals?

make_it_happen_torn_paper.jpg

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 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
performance plan.

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
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!




What is the Faithless Servant Doctrine in Employment?

Allowance alimony getting bonus paid pay raise

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
good faith.

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.




I am Being “Bullied” at Work. Do I Have Any Rights? Is There Anything I Can Do to Stop the Bullying?

Are you a victim of bullying  No.

Workplace bullying
comes in the form of:

  • Verbal abuse.
  • Offensive behaviors that are threatening,
    humiliating or intimidating.
  • Work interference or sabotage that prevents
    work from getting done.

Workplace bullying can be by one person or by a “mob” (this
generally includes peers of the offender or those that think that assisting in
the bullying will gain them favor with the perpetrator).

Generally, “bullies” in the workplace are in high
power positions or have the ability to influence working conditions for the
employee. In most instances it is a supervisor and subordinate relation.
However, it does not have to be a person in a power position that bullies
another employee. Bullies can be the employee’s peer who is trying to gain
favor, an employee who’s work may be subpar, an employee who feels insignificant
or valueless. Bullies take actions to make others feel bad in the attempt to
make themselves seem more important.

Some examples of common tactics used by workplace bullies are:

  • Falsely accusing someone of errors the person
    didn’t actually make.
  • Hostilely staring at an employee or nonverbal
    intimidation.
  • Unjustly discounting the person’s thoughts or
    feelings in front of others.
  • Using the “silent treatment.” Refusing to
    acknowledge the person or say hello or goodbye.
  • Making up rules for specific people.
  • Disregarding and discrediting satisfactory
    work.
  • Harshly and constantly criticizing the person.
  • Starting, or failing to stop, destructive
    rumors or gossip about the person.
  • Encouraging people to turn against the person
    being tormented.
  • Singling out and isolating one person from
    other co-workers, either socially or physically.
  • Yelling, screaming or throwing tantrums in
    front of other colleagues to humiliate someone.

Donath Law, LLC has
experience raising and resolving situations in which employees are being
bullied in the workplace. While the laws have not been passed to protect most
targets of bullying, there are creative alternatives to assist employees in
protecting their employment and fighting back against bullies. Bullying may
also fall under laws, among others, that protect against
discrimination, sexual harassment, retaliation and breach of contract.

Some employees being
bullied feel they have no option but to
resign from their job. There are other options.

Don’t continue to be a
victim! For more information or to find out how we can better assist you with
your personal situation, contact
Sheree Donath.