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



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.

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For more information about your options contact Sheree Donath to schedule a consultation.


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.

What is the Difference Between Termination With Cause and Termination Without Cause?

Press button with You re fired on it

Employees always question what it means to be Terminated With Cause versus Terminated Without Cause. The quick response, is that a Termination With Cause generally means that an employee engaged in some kind of misconduct whereas a Termination Without Cause is based upon a decision of the employer to end the employee’s employment.

Terminations With Cause generally occur in some of the following situations, including among others:

  • violations of company policy
  • insubordination
  • fraud
  • embezzlement
  • conviction of a crime
  • violence or threated violence at work
  • falsifying records

At times, Company’s try to claim that performance can be a reason for a Termination with Cause. However, poor performance or not meeting expectations is not necessarily Cause (i.e. gross misconduct) as defined above, but can be used to deny an employee benefits or severance that the employee may be entitled to receive had the employee been terminated without cause. Sometimes, employees who are about to be Terminated With Cause may be given the option to resign from the job.

Termination with Cause has substantial ramifications and could result in an employee losing stock options, equity, deferred compensation, severance, bonuses, unemployment benefits, etc.

Termination Without Cause is how most employees are terminated, as most employees are at-will employees. Examples of Termination Without Cause are layoffs, reductions in force, job eliminations, downsizing, etc. Terminations Without Cause generally afford employees with all the benefits an employer has promised through contracts and policies. Many employees Terminated Without Cause also receive severance benefits.

Regardless of whether an employee is Terminated With Cause or Terminated Without Cause the employee is still obligated to adhere to contracted restrictions on the employee’s future employment, including, Non-Compete Agreements, Non-Solicitation Agreements, Workplace Invention Agreements, Confidentiality Agreements, etc. Understanding what you may be entitled to receive when you are terminated may be confusing. Click here to schedule a time to speak with Sheree Donath to discuss your employment situation and to obtain guidance on your specific situation or if you believe you may be terminated soon.

My Job Placed Me on a Performance Improvement/Action Plan (PIP), What Does that Mean? What Should I do?

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 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.

What Terms Should I Expect to See in My Consulting Agreement?

Many companies enter into consultancy agreements rather than employment agreements with their workers. Why? At times, it is because a treasured member of the organization is retiring or departing, but is full of knowledge and it would be best for the company to still have access to such value. At times, it is part of a severance arrangement and at times, it is project-based. For whatever reason the company and individual decide to enter into a consultancy agreement, the agreement should be clear and set forth specific terms regarding the arrangement.  

So what terms are generally within these documents or what terms should you expect to see? Below are a few provisions (not an all inclusive or required list) that may appear in your agreement:

– a description of the scope of services to be performed;
– the length and term of the engagement;
– that the individual will be an independent contractor and not an employee and therefore not entitled to employee benefits and responsible for taxes on payment;
– timing and method of payment;
– tax indemnification;
liability indemnification language;
– a confidentiality and proprietary information provision(s);
– workplace invention/ assignment provision(s);
– termination of agreement and notice requirements;
– malpractice and other insurance issues;
– standard contract provisions: choice of law; integration clauses, successors and assigns, modification of agreement, etc.  

If you have received a consultancy agreement or are in the process of negotiating the terms of the agreement, you should seek legal guidance and counsel. It is also important to understand how this new arrangement may be affected by agreements you may have previously entered into with other companies or former employers. Additionally, any agreement should be reviewed prior to execution to ensure that you are protected, that all necessary provisions are included and that you understand the terms and your obligations.  

If you would like such legal counsel or want to understand what responsibilities you have under your agreement should you end the arrangement, contact Sheree Donath by clicking here to schedule a time to discuss your situation.

New Year. New Job. Resolution #1 – Resigning from Your Job

Is your New Year’s Resolution to make changes in your 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 possibly some strategy.  

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.

Happy New Year from Donath Law, LLC

Donath Law, LLC Wishes You and Your Family a Very Happy, Healthy and Prosperous New Year.

A new year offers a chance for new beginnings. Whether you are looking this year to get a new job or leave a job you are not happy with, get a raise or promotion, create a better work or life situation, change the way you are treated at work or just understand your options, Donath Law, LLC can assist you.

Contact Sheree Donath to find the best route to achieve your goals for 2019.

I filed a Workplace Complaint – What Should I Expect from the Investigation?

Employees are generally concerned about filing a workplace complaint. The two most comment questions that employees have are: Will my complaint be confidential? And will I be retaliated against for reporting my concerns.

While employers should have clear policies for complaint reporting, many don’t. This makes the filing of a complaint even more scary for the employee who got up the nerve to finally report the concern that is personal to the employee.

What is even worse, is when my clients report that their employers try to discourage the reporting of complaints and do not take any action to eliminate the Complainant’s concerns. 

So what should the employee know and do to file a complaint and have that complaint properly investigated?

First, employees should know that if they make a complaint, it cannot always be kept confidential. Why? Because in order to investigate the complaint, the employer will need to speak with the person(s) that you are alleging engaged in the wrongdoing, as well as any potential witnesses.

Second, the employee should document their complaint so that there is a clear record of the complaint. In my practice I have come across many employers, for various reasons, who do not document complaints raised by their employees. The employee should protect themselves and make sure that the report is documented, either using the employer’s complaint form, if any, or through email.

Third, the employee should provide relevant documents. Any documents provided should also be retained by the employee. It is helpful to submit any relevant documents by email, so that there is a record of the documents and the employee’s sending them.

Fourth, the employee should provide names of possible witnesses. To assist in the investigation, the employee should provide the names of others who may have witnessed the subject(s) of the complaint(s) or may have been subjected to the same or similar conduct.

Fifth, the employee should ask the expected timing of the investigation. It is helpful to know if the investigation is expected to take a few days or a few months. This may be dependent on the specifics of the complaint itself and how many people may have been involved or have information related to the employee’s concerns.

Sixth, the employee should ask if there will be a written finding and will the employee receive a copy. Many times the company will verbally provide a verbal finding to the employee. However, the employer may be preparing a written statement for their records. The employee can request a written finding or put the finding in writing on their own.

Seventh, the employee should request interim action be taken during the investigation, if warranted. Depending on the nature of the complaint, interim action may be sought (i.e. paid or unpaid leave of absence for the victim or accused; transfer, etc.).

Eighth, the employee should seek confirmation that the employee will not be retaliated against for making this complaint. Employees should not be subject to retaliation for coming forward and most employer’s have anti-retaliation policies. However, it is helpful for employees to reiterate their concerns and have the employer put this promise of no retaliation in writing.

For assistance in reporting workplace complaints and/or guidance in understanding the process or with the outcome, contact Sheree Donath at (516) 522-2743 or at sheree@donathlaw. 

Are You Thankful Both For and At Your Job or is it Time to Make a Change?


Around Thanksgiving employees should take time to decide if they are thankful that they simply have a job or for the job itself. That is, are you thankful for the following: 

·     having a job

·     getting a paycheck

·     receiving benefits

·     the people you work with

·     the work that you are doing

·     the opportunities that the job brings

If you are simply thankful to have a job and get a paycheck then it may be time to explore your options. Is it time to seek a promotion? Is it time to look for a new job or a new career path? What can you do to bring about change that will make you happy to go to work each day?

Thanksgiving is a time for reflection. What is it that you truly want from your job? Can this be accomplished at your current employer? If so, how can you seek or seize the opportunities that you want to obtain? What are the next steps? What is it you are looking for (i.e. promotion, more money, flexible arrangement, etc.).

If what you are seeking to obtain is not available at this job, it is time to contemplate next steps such as seeking new employment, returning to school, etc. However, if you do decide that new employment is what you want, we do not recommend making hasty decisions like resigning from your current job without a new job commitment. For example, resigning your job will generally preclude you from getting unemployment benefits and depending on you situation you may lose deferred compensation and be subject to a non-compete, among others.

For guidance on navigating your current situation, seeking to make changes in your present employment or discussing a transition out of your job contact Sheree Donath at (516) 522-2743 or at