Question: I worked for my employer for 8-1/2 years. Recently, an incident took place at work, and five days later I was placed on “administrative leave, pending further investigation.” I was never contacted, or interviewed, for my version of events. Two days later I received my final pay and unused vacation pay by direct deposit. I wrote back, insisting that I was not at fault, and demanding a copy of my employment file. That day I received an email telling me the investigation was re-opened, and was asked to come in to HR. What should I do? How do I respond? What are my options?

        Serge, Ontario, Canada

Answer: I must first admit that I am not at all familiar with Canadian employment laws, or the employment customs of Canada. For this reason, I must suggest that you consider the wisdom of consulting with an experienced employment attorney resident in Ontario. (If you would like, we can locate one for you.)

With that in mind, I do observe one important thing, and ask that you take note of it, as well: your former employer responded to what you wrote. That is key to keep in mind. The lesson: what works will likely continue to work. Why don’t you consider putting your version of events, and by “events” I mean everything that happened to you, from the incident through today, and consider sending it to the company President (or CEO), and perhaps even the members of the Board of Directors of the company. Consider telling them why, after 8-1/2 years, this is not fair, and suggests to you that something irregular may be taking place. Tell them what you want: a fair, open hearing, and your job back – with back pay.

Your letters must be clear, calm, focused, and – most of all – respectful. Otherwise you will not have much credibility. This is in the general nature of how we frequently “negotiate” to help employees get fair treatment. Speak the truth, go to the source, tell them what you want, and what is fair, which is the same thing in your case.

Hope that’s helpful. Let us know if we can locate an experienced Ontario employment attorney for you.

Best, Al Sklover

Question: I  manage a team of outside sales reps. One of my reps has exceeded his allotted time off and is now not returning phone calls or emails. Is there a number of days that I need to wait for his actions to be deemed job abandonment and I can set a termination date?

                                                          Rick, Long Island, NY

Answer: Though it may seem a bit old-fashioned, we adhere to a strict policy of sticking to our “mission,” which is to educate, motivate and empower employees at work. That helps us keep our focus and purpose, a prerequisite to success in any endeavor. We don’t provide any assistance to employers, as they seem to us to have all of the advice, counsel and assistance money can buy. Sorry.

        Al Sklover

Question: A friend was terminated as Executive Director of a non-profit organization after 25 years of service. The reason given by the Board of Directors was “lack of funding.” However, in a local newspaper interview, a Board Member said, “We are hoping to fill the Executive Director position very soon.” Also, it is circulating that this same Board Member is taking the job, himself. Another Board member, disturbed by this, told my friend. Besides unfair, is this illegal? I thought I read somewhere that a position eliminated due to budget cuts could not be filled for a full fiscal year.

        Loretta, Carmichael, CA

Answer: Two thoughts immediately come to mind: first, did your friend have an employment contract? Since you didn’t mention one, I presume that he or she did not. If there was an employment contract, that would govern the situation. As you probably know, without an employment contract, your friend would be what we call an “at will” employee, capable of being terminated at any time, and for any “permissible” reason. Don’t forget about that word “permissible”; we will come back to it.

Second, are you 100% certain that the Board Member who told your friend that the other Board Member was taking his/her job, was absolutely, positively correct? If you are not so certain, I caution you and your friend to be very careful about what you tell others about this situation. If it is not true that the Board Member is taking his/her job, you could be unnecessarily hurting someone’s reputation by passing on untrue rumors, and could even be sued for it.

Now, assuming (1) your friend had no employment contract, and (2) you are certain of the truth of the report of the Board Member being hired, let’s proceed. Without an employment contract the Board can terminate your friend’s employment for any “permissible” reason. I see no reason to believe that hiring a Board Member is impermissible in the law; in fact, it’s even permissible in the law to fire someone in order to hire someone else you love, even an incompetent son or daughter. I believe that it is unfair, especially after 25 years of service, but permissible under the law. That is, I don’t think they’ve broken any laws.

Incidentally, I know of no law anywhere that requires a job opening due to financial reasons must be left open a full fiscal year. I’ve never heard of such a law, although one might exist.

But let’s now talk about “creative negotiation.” The Board may have violated the organization’s Code of Ethics, or its policies concerning Integrity, or even its Conflict of Interest rules. Most organizations have such internal rules, regulations, policies and Codes of Ethics. Ask your friend to review these carefully. It could be his or her “way out” of this problem. If the Board is violating its own rules, and it is brought to the Board’s attention, at an open meeting, or in writing, that might just get it to reconsider its actions.

And what of the organization’s members, contributors, or supporters . . . don’t they have some say in the way the organization runs itself? Surely after 25 years your friend has friends, supporters, loyal followers, or those who appreciate him or her, and even perhaps some major contributors? If the Board is “pulling one over” on them – which is what one Board Member apparently already believes – they might be appealed to as well.  If the Board doesn’t believe it is doing something “wrong,” then why is it not being open, honest and forthright about it? The old saying “The best proof of a crime is the existence of a cover up” may be applicable here.

Hope should never be lost. Every person should “stand up” if he or she thinks “things ain’t right,” and that is what seems to be the case here.  At a very minimum, your friend deserves better. I really hope he or she will “negotiate” to a fairer result. And I really hope this is helpful.

        Best, Al Sklover

“Carelessness is worse than theft.”  

- Gaelic Proverb

ACTUAL CASE HISTORY:  Shortly after college, at age 23, Simon was hired by a family-owned  real estate development firm as a Project Manager. At first he was given rather simple tasks, like making sure that “punch list” items – those last, small items on every job, such as replacing cracked windows and burned-out light bulbs – were attended to. With his attention to detail and rare perseverance, Simon’s reputation as a good employee blossomed. By age 29, he was supervising construction crews and overseeing condo sales teams. And as his responsibilities grew, so did his compensation. By age 31, Simon’s annual salary and bonus exceeded $200,000. 

To keep Simon motivated, each year he was awarded bonuses of $100,000, to be paid to him $25,000 per year, for four years, in the last week of December. To discourage Simon from going into business for himself, the company’s owners promised him he would be an owner of at least 20% if he stayed another five years. A written employment contract was prepared for Simon to sign. It was to last 5 years.  After his cousin Barbara, an immigration attorney, reviewed and approved the contract, Simon signed it.

Two years later the family that owned the company was offered $25 million for it by a publicly-traded REIT (shorthand for real estate investment trust.) The REIT was going to do an “asset purchase,” which means that Simon’s company would be selling its assets, not the stock of the company, itself, a common way to buy a business. The family members were elated. Simon was concerned; he wanted to know what this meant for him. After all, he wasn’t really “family.” He was assured that this would be a great thing for him, too. He even met with his new bosses, and they seemed to be true professionals.

After the sale of the business’s assets, Simon was given greater responsibilities, and oversight, as the old crew became a new division of the REIT. He was confident that things would go quite well. When Christmas time came around, Simon was waiting for word regarding when he would receive the “first” $25,000 installment he was owed for last year’s bonus, and the “second” $25,000 installment he was due from the bonus of the year before. When he was told “There must be some mistake, because we don’t give bonuses,” his heart sank.  Then Simon inquired about the 20% of the company that he was to receive in two years. When he was told “You must be confused,” his heart skipped a few beats.  He was crestfallen.

After “the lawyers did their thing,” Simon learned that those two big promises in his employment contract – for his $100,000 bonuses, and for his 20% business ownership – were promises of the “old” company, not the “new” company he now worked for. If he was to collect on those promises, he had to collect from the old company. Problem was, there was no more “old” company to collect from. The company, itself, had no more assets; all had been sold. The monies derived from the sale of the company’s assets were divided up among the 23 family members, who lived in states from Maine to California. While each family member he spoke with was sympathetic, none was willing to pay him from their own pockets. Instead, each suggested “Speak to your lawyer.”

While his lawyer, Cousin Barbara, couldn’t seem to explain what had happened, she sure seemed upset. Simon had lost $175,000 in bonuses, but far, far worse, 20% of a $25 million company, worth $5 million. A big loss, and an easily avoidable one, at that. All because one single, simple sentence was missing from his contract: the “Successors and Assigns” clause. 

If only they’d added a sentence that read something like this:  “The rights and obligations of the parties to this agreement will be binding on, and will be of benefit to, each of the parties’ successors, assigns, heirs and estates.” That would have made the “successor” REIT bound to the agreement (and benefit Simon’s estate, if he passed on.) One simple sentence can be worth so very much.  

LESSON TO LEARN:  An agreement binds only the parties to that agreement. Most agreements are between two parties: in sales agreements, they are the (a) buyer and (b) seller; in lease agreements, they are the (a) landlord and (b) tenant; in employment agreements, they are the (a) employer and (b) employee. No one else is bound. Most importantly, anyone who later “takes the place:” of one of the parties is not bound. That’s usually a problem. The solution? It is a “successors-and-assigns clause.”

Imagine the following: You rent an office from the owner of an office building. You paint, put down carpet, install lighting, buy custom-fit furniture, have stationery printed with your new address on it, and move in. The next month someone new buys the building. The new owner stops by and says, “Nice to meet you. Your rent has been tripled.” You say, “But I have a signed lease.” He says, “Not with me, you don’t.” That’s what a “successors-and-assigns” clause is meant to prevent.

A standard “successors-and-assigns” clause reads like this: “This Agreement is binding upon, and will inure to the benefit of, the parties to this agreement, and their respective successors and/or assigns.”  (A slightly more comprehensive variation would be this:  “This Agreement is binding upon, and shall inure to the benefit of the parties themselves, as well as their respective representatives, successors, permitted assigns, heirs and estates.”) 

[A “successor” is a person who steps in to the shoes of a party, that is, “succeeds” to the interests of a former owner. An “assign” is the recipient of the property of a party, who has been given the assets of a predecessor owner by “assignment.” Generally, a “successor” buys a whole company; an “assign” just buys its assets.]

In employment agreements, and all employment-related agreements that give you something (including stock option agreements, commission agreements, and deferred compensation agreements) it is essential that you have a “successors-and-assigns” clause. (On the other hand, any agreements that “take” something from you – such as a non-compete agreement, that takes your freedom from you – is better for you if it fails to have such a clause.)

Any employer could be merged or acquired out of existence. Any employer could decide to sell its assets, divvy up the sale proceeds, and then simply go out of legal existence. Any employer could find other ways, too, to deny you what you have been promised, and have earned. The key to preventing this is simple: make sure you have a “successors-and-assigns clause” in your agreement.  Otherwise, all you’ve worked so hard for could be lost, without a chance of getting it back.

WHAT YOU CAN DO:  This is how you can protect yourself: 

1. In Every Agreement, Always Look for the “Successors-and-Assigns” Clause:  No matter what type of agreement you are looking at, always look for the “successor-and-assigns” clause. As a matter of customary contract drafting, if it’s there you will usually find it among the last four or five sections in an agreement. It might be labeled “Parties Bound,”  “Binding Upon” or “Successors and Assigns,” or any number of other titles. It might also be “buried” among other provisions, with a totally unrelated title. (That’s why we read every word.)  Such a clause should be present in every employment agreement, stock option agreement, restricted stock agreement, commission agreement, indemnity agreement, retention agreement, and everything “in between.”   

2. If It’s Not There, Always Ask for It:  There is nothing improper, impolite or aggressive in asking that a “successors-and-assigns” clause be added to your agreement. It’s “standard” language in business agreements, and employment agreements are a type of business agreement. It could be said that the absence of a “successors-and-assigns” clause in an employment agreement (or one related to employment), in and of itself, has profound consequences, because it suggests the parties did not intend that the successor employer should provide to the employee what the original employer did not. Think about it: if you work for a small accounting firm, and you are promised a bonus of $10,000 if you stay for two years; if your accounting firm is merged with a larger one, and you stay the two years, what was intended: that you’d get paid the bonus, or that you would not? The absence of a “successors-and-assigns” clause says, simply, “It was intended you would not.”  If you ask for a “successors-and-assigns” clause, and are turned down, you can safely assume there is a reason for that denial, and that the reason is not a good one for you.

3.  The Two Exceptions: When It’s Truly Not Intended, and When It Makes No Sense:  There are two circumstances in which we do not expect a “successors-and-assigns” clause. First, in some circumstances it is not intended that a “successor” or “assignee” be obligated to the “other side.” For example, if you were promised a bonus that was to be paid to you only if the company was not sold; then in the event of a sale, it was not intended you would receive a  bonus. In that case, the successor paying you a bonus was not intended. Second, for the employee, it would not make sense to ask for a “successors-and-assigns” clause in a non-compete agreement, because then it is not in his or her interests; in that case, asking for one to be put in makes no sense. If the employer did not have the sense to insert it, don’t wave flags.

4.  Watch Out for the “Old One-Way Trick”: Occasionally we see what we view to be dishonest lawyering by attempted trickery, most commonly by those in large law firms who have been told and taught they are “the cleverest.” This is what we call the “Old One-Way Trick”: “The obligations and interests of the parties under this agreement shall inure to the benefit of the employer, and its representatives, successors and assigns, and be binding upon the employee, his/her representatives, successors and assigns.” Read the words carefully: notice that the way it is worded, (a) the employer (and its successors and assigns) enjoys the benefits of the agreement, but not its burdens, and (b) the employee (and his/her successors and assigns) suffers the agreements burdens, but fail to enjoy its benefits. The first time I saw this I was upset; the tenth time, I was surprised; now I simply send an email to the senior partner of the opposing firm reminding him that this is not how law used to be practiced.

5.  It’s Especially Important When Working for a Smaller “LLC” and “INC.”:  As in our case history above, it is most important to have a “successors-and-assigns” clause when working for a smaller limited liability company or corporation. Why? Because they are more likely to be purchased, merged or dissolved. In each instance, you want the party who takes over or receives the remaining assets to be liable to you. In companies owned by the grandchildren of the founder, it is essential, as they are notorious for not getting along with each other, “running down” the company, and wanting to “cash out” the company.

6. Your Employer Being Sold or Merged?  Send an Email Reminder: Surprises in business are usually not fun. If the company that acquired your employer is not aware that you are owed a $50,000 retention bonus, or eighty-two accrued vacation days, you might engender ill will when you ask for payment. Instead, send an email to General Counsel of your own employer, not the other side, and write “It is my expectation that the new acquirer is aware of my rights and interests, which are binding on successors and assigns. If not, please ensure that they are.” That will place your company’s primary attorney in a place where he or she will either (a) let the acquirer know, or (b) likely be later accused of fraud. Let him or her do your duty.

7. Sound Like a “Hassle?” Remember You Are Doing This for Your Loved Ones, and Heirs: Sure, looking for, and asking for, a “successors-and-assigns” clause in your employment-related agreements may sound like a hassle, and today is not the day you needed more hassles in your life. However, the absence of such a clause may deny what you’ve earned today to you and your family another day. And don’t forget: in the event of your passing, your heirs are your successors, will be without you being there for them, and so will have a greater need for what you’ve earned.    
    
Our Quality Vs. Power™ (QVP™) Method of Workplace Negotiating emphasizes smart negotiating – and navigating – for yourself at work. Negotiation of work and career issues requires that you be aware, alert and assertive regarding words, phrases, clauses and sentences that appear – or do not appear - in your employment-related agreements. Without a “successor-and-assigns” clause, all you’ve earned could end up lost.  

Always be proactive.  Always be creative.  Always be persistent.  And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.”  That’s what our Quality Vs. Power™ Method is all about.

A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.    

“The biggest problems we do not solve, but outgrow.”

- Carl Jung, Psychologist

The biggest problems don’t have easy solutions. The biggest problems require that we reach deep, confront ourselves, change our ways, and the ways of others – in other words, challenge “what is” in order to create “what should be” . . . that’s not easy, but that’s real growth.

Robert*, 49, an information technology executive at a ”Wall Street” firm came to us in a quandary. Until last year, he had $1.4 million worth of stock options in his employer’s stock, he had received as part of his annual bonuses given to him over his 19 years with the company.  Today those options are worthless. His daughter, 20, is a pre-med in her sophomore year, and his two sons, 13 and 17, are in private school. He has no savings, other than his stock options, which are “under water,” and thus worthless.  And now he faces - and fears -possibly losing his job. He asked us to help him strategize about how he might make a compelling request for a better-than-standard severance package.

Something very unusual has recently happened that few seem to realize - most ”Wall Street” employees have lost a great part of the compensation they’ve earned over the last five, ten, fifteen and in some cases, thirty years.  Each year, their bonuses were paid in good part in various forms of “equity,” that is, stock, stock options, “phantom stock,” etc. Over the last year, many of them have lost much, most, or all of its value. Wiped out. Something unimaginable until a few months ago.

Many people don’t realize how much annual bonuses mean to those who work on Wall Street, and how much of those annual bonuses are paid in stock and stock options. Employees - even clerical workers - employed at Bear Stearns saw their stock slide in some 10 months from $172 a share to $10 a share.  A million-dollar nest-egg, surely enough for educating three kids, is now worth just $58,000. Worse, employees of Ambac, the municipal bond insurer, saw their stock fall from $82 to $1 this year. A million-dollar nest-egg for an Ambac employee is now worth just $12,000, a pittance when compared to college costs.  And to add icing to the cake, some estimate that Wall Street faces up to 75,000 layoffs in coming months.  

Undoubtedly, some will say to themselves, “Serves them right. They should have saved, like the rest of us.” The plain truth is, equity became the “savings” of so many Wall Street employees, and why not? Surely, they had no reason to see coming the volatility and tumult that came this year. Did anyone with a retirement, investment or family portfolio see it coming?

Will Wall Street employment ever again seem so attractive to the “best and brightest?”  Will Wall Street firms need to provide greater job security in return for formerly outsized compensation?  Will the collective memory of parents who “lost it all” taint the dreams of their children? Is this temporary, long-term or permanent?  Will the next generation come to see investment banking as an ill-advised career? Will parents once again steer their kids to the relative safety of medicine and law, or the pensions available from government service or teaching?   

About a year ago I appeared on Maria Bartiromo’s CNBC afternoon cable show, “Closing Bell.” I debated an Institutional Investor, who believed that Wall Street compensation was “out of control,” and “over the top.” I reminded him that of the volatility and evanescent nature of equity as a part of compensation. As the saying goes, “On Wall Street, some years it’s chicken, others years it’s feathers.”  He resisted the point. I expect that he now understands my point a bit better.  

My paternal grandfather came to this country from southern Russia. He was a dry-wall carpenter. He worked, saved, invested and grew to own eight apartment buildings, but lost every penny he owned in the Great Depression when his tenants couldn’t pay their rents. According to my father, he was “never the same, a broken man.” Funny thing . . . I haven’t forgotten that have I? Only time will tell what effect there will be on the children and grandchildren of people who “lost it all” this year. But memories of the losses incurred, and the changes in familiy circumstances that will inevitably ensue, surely will not fade from family memories soon.  Something very “big” may have happened.  Only time will tell.

(* Robert’s story is a true one; certain facts have been changed to hide his identity.)  

Question: I am being harassed at my job. I went to a higher up about this, who expressed disbelief that my boss would act the way I described. My boss and his manager asked to meet with me to see if we could fix what is wrong. Unfortunately, the meeting ended up being nothing but a “he said – she said.” My boss dared me to quit, and told me that others would die to have my job. I am now on tranquilizers, just to numb myself from this pain. What can I do?

       Dixie from Spanaway, WA

Answer: There are several things you can do, but none seems more important than trying to get a hold of your health, your emotions, and your perspective. Consider either requesting a leave of absence under the federal Family Medical Leave Act (often called “FMLA”), or calling in sick a day or two. I am certain your job and your income are critical to your financial survival, but I am also certain that, if you lose your job, others may help, while if you lose your health, others may not be able to help. Think about it.

You haven’t told me anything about the kind of “harassment” you are facing. If it is in any way related to sexual matters, your gender, your race, your age, your ethnicity, etc., then you should immediately file a WRITTEN complaint with the Director of your employer’s Human Resources Dept., and perhaps even your employer’s CEO. Then you should immediately follow it up with a WRITTEN complaint to your state’s Human Rights or Labor Department Discrimination Board, and your state’s U.S. Equal Employment Opportunity Commission (”EEOC”). Every such complaint must be in WRITING, must describe the kind of “harassment” you are facing, and the way(s) you have complained about it.

If your boss is being overly demanding, or raising his voice all the time, humiliating or abusive in these ways, may I suggest you read our Newsletter Library Article entitled, “12 Ideas for Dealing with the Boss from Hell.” It offers steps you might consider taking in your situation.

Lastly, consider trying to find a new job with a new employer. Sure, it is very hard these days, but some situations are unquestionably without hope. Some situations are unquestionably not going to change. Some situations are simply not worth it, if “worth it” means having to take tranquilizers to, as you say, “numb myself from this pain.” You might, too, consider seeing a therapist, to see if you might come up with better techniques for stress/anxiety control than “numbing” yourself with tranquilizers.

Let me share something a bit personal, but hopefully helpful to you. When things in my own life are going poorly, and I am discouraged, and I see “no way out” of the problems I am facing, I simply pray each night for three things, that I call “The Three Simple S’s”: (1) Strength, to deal with the problems without falling down, (2) Stamina, so I can continue to deal with the problems, without giving in to them, and (3) Serenity, to keep my mind calm and clear, and my heart strong, so I can deal with the problems in a clear fashion, without making them worse. Funny thing . . . always happens . . . sooner or later, the problems seem to go away . . . I kind of outlast them.  Why, I don’t know, but this simple prayer – for “The Three Simple S’s” – is always answered.  You might try it.

I hope this is somewhat helpful, I really do. You will be in my prayers tonight.

         Best, Al Sklover

Question: After 12 years of successes and promotions (6 times), my reputation was unduly damaged among the senior managers and reputation lost. I am looking to go to another company, but with the current level of responsibility, am struggling to find the time to make the change. I would like to quit. Questions: Can I receive unemployment? What do I need to provide to unemployment? Do I have any recourse against unfounded reputational damage? What type of attorney should I consult with? Thank you for your assistance.

By the way, I love your website. So incredibly helpful.

        Arthur, Columbus Ohio

Answer: First, “Thank You” for your compliments on our Blogsite. Glad you find it helpful. “Helpful” is the ultimate compliment we strive for.

Second, you surely seem to be in need of a Transition Plan, a plan to “travel” from this job to your next job without “hitting a wall” in the process. Take it one step at a time, and it’ll be a whole lot easier. “Yard by yard, it’s very hard. Inch by inch it’s a cinch.”

From the sounds of your letter, it seems that you really believe that you need to make an employment transition.  That means you need to plan and navigate each step, carefully. As you probably know, we have many articles on the challenges you face, and how to meet those challenges, in our Newsletter Library. Look them over. We wrote them, and offer them to you for this very purpose.

Let’s take your questions one at a time:

Resignation: When asked about resignation, we always say this: “No, no, no, unless you really, absolutely, positively must.” Resignation leaves you unemployed, and thus with less chance of getting re-employed. It leaves you unemployed, and thus likely to get less compensation when rehired. It also makes it look like you were fired, because very few people resign without first getting a new job. Resignation probably will disqualify you for unemployment insurance benefits, at least in most states. Resignation makes you unlikely to receive any kind of severance, or other employer assistance you might receive through negotiation. Please review my Newsletter entitled “Resignation, the 21 Necessary Precautions,” unless you already have.

Unemployment Benefits: As noted above, in almost every state unemployment benefits are denied those who voluntarily resign. The key word in the previous sentence is “voluntarily.” In most states people who resign because they were harassed, or asked to do something illegal, or the like, can still receive benefits, because their resignations are not considered truly “voluntary.” Your own circumstances are unknown to me, so I can’t comment on them. I think, though, you understand the concept.

What kind of Attorney Should You Consult With:  You should locate an experienced employment attorney in your locale. We would prefer to see you consult with an employment attorney who represents employees, only (as we do) because then you need not worry about conflicts of interest, real or perceived.  The best kind of employment attorney is one who will help you strategize and plan both your transition “out” and your transition “in” to new employment, hopefully without a gap, or a “wrinkle.” [If you like, we can recommend an attorney in the Columbus area for you.]  Your attorney should be able to answer for you whether you have any recourse for the reputational damage done.

Can’t find time to Plan and Execute the Plan?  On this, we can only say that “You can only do your best, and you have only one thing you must do: your best.”  If you need to, schedule a vacation, and work on this. If you have to call in sick, take a day or two to work on this. Let the lawn get overgrown. Cancel that golf game.  Tell your sister you may not be able to travel to her house in Pennsylvania this year. Planning and executing on an employment transition plan, for you at this time, has to be one of those “higher priorities” in your life, just below eating, sleeping and bathing.” If only for a few weeks, adjust priorities a bit. Though easy for me to say, I think you’ll be happy if you do.

Hope that helps. Let us know if you need the name of one or two local employment attorneys. If this has been helpful, I ask you two simple favors: (a) subscribe to our blog; its free, and (b) tell you friends about us. We’d love to help them, too.

         Best, Al Sklover

“No one died.”

- Boris Becker, Tennis Star, when asked why he seemed so calm after losing a Wimbledon championship match.

Problems at work – including job loss – can be devastating. But workplace problems pale in comparison to other potential problems, including those that affect health and family. Ask yourself “Is this worth getting sick over? Is this a reason to alienate loved ones?” I’m confident your answer will always be a clear “No.” Maintain perspective, especially in difficult times. It’s essential that you do.

Question: I have been working for this company for 3 years now. We’ve never had “non-compete” agreements here before. Recently, a VP left, and went to work for a competitor. Now everyone is being told that we have to sign non-competition agreements, or leave. They have not given me any incentive or payment to sign this non-compete agreement. Is this legal?

        Jackie, Coral Springs, Florida

Answer: I wish it wasn’t so, but as a general rule, it is entirely legal for an employer to tell its employees “Sign this non-competition agreement, or leave.”

How come? The reasoning goes like this: employees and employers are free to set the terms and conditions upon which they deal with each other. Employees can leave when they want to, and employers can ask them to leave when they want to. Employees can say, “Pay me X dollars, or I am leaving,” and employers can say, “Sign this, or leave.” It is a type of mutual freedom. When it comes to non-competition agreements, employers can say “You must sign this, or leave,” and employees can simply say “No, thank you” and leave. Or they can sign, and stay. It’s their choice.

I know this sounds very unfair, and to my mind it is so unfair, it SHOULD be illegal. It is not so easy to find a job, or a job near where you live, or one that you can do well and enjoy. “Just leaving” is not at all “just easy.”

Do employers have to give employees  something in return for their signing a non-competition agreement? The simple answer is “No.” In legal theory, the answer is that they actually did give you something: “continued employment.” In fact, most non-competition agreements handed to employees who are on the job say something like this, “In exchange for your being permitted to continue to work here, you promise not to work for a competitor for a certain period of time (usually a year or two) if you ever leave here.”

You can try to negotiate with your employer if you represent sufficient value to him or her. Say, for example, you are the only person in the company who knows how to work the most important piece of software on the computer. You can say, “If I leave, you will not know how to work the computer.” That is, the best way to negotiate with a boss is to be critically important to him or her, so he or she DOESN’T DARE say that to you again. Think about it: if Tiger Woods worked at a golf school, would his boss dare say that to him? Most of us, though, are not that important. But that is the best alternative.

I know it’s not what you wanted to hear, but it is the truth. Thanks for writing in. Please tell your friends about our Blog.

        Best, Al Sklover