While they have made him apologize to me, it seems they are now turning this around, and making a case that I am at fault. I have never had a single complaint against me, for conduct issues, for performance, or for anything at all.

I have submitted everything in writing I can think of to support myself and my version of events. Is there anything else I can do?

        Sarah             
        Calgary, Alberta, Canada     

Answer: The facts you present make out a case of possible retaliation for filing the complaint in the first case. These are the things I suggest you do now:

1. Find out if your Employer has an Anti-Retaliation Policy. You might start with the Employee Handbook, the Company Policy Manual, and the company’s website. 
2. Find out if your Canadian province or federal law prohibit retaliation for filing complaints of hostility, as most states and the U.S. federal law do.
3. Raise the issue of “retaliation” for exercising your own rights, that is, filing a complaint.
4. The “retaliation” issue should be sent not to HR, but to the Division President, CEO or Board of Directors, because it seems it may be HR, itself, that is doing the retaliation.
5. Of course we raise these issues in the form of emails, so it is written, and it can be proven that it was sent and received.
6. Make sure you note the obvious: it was only after you filed a complaint, that a complaint was filed about you: that looks like the very picture of “retaliation.”
7. You may also want to consult with an experienced employment attorney in your locale.
8. In all events, hang in there. That cannot be underestimated. 

Hope this helps. I really do.  I hope, too, you’ll let us know how it goes for you using our “Feedback Invited” form.

          Best, Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

I had an agreement with the salon owner that went from 12/9/08 to 12/9/09. On 12/9/09 the shop owner was in a particularly bad mood, and I just had enough.  When I finished my work for the day I told the salon owner that this was my last day; I would not be coming back. I had already paid the rent up to 12/9/09.

I know it is common courtesy to give a 30-day notice as per our agreement, but it was expired on that very day.

Was I wrong, or right, in what I did? Thank you, in advance, for your reply.

        Josie             
        Porterville, California

Answer: Josie, your question is actually a good one, because even many lawyers often get confused between “expiration” and “termination” of a contract. From what you’ve written, though, it is hard for me to determine if you did “wrong” or “right.” Let me explain why:

If you have an agreement that says, in one way or the other, “This agreement expires on 12/9/09,” then the agreement, in law, “expires,” as if it was a living thing that just “died of old age.” When an agreement “expires” it just ends without the need for either party to give the other party any “notice” or “resignation.” It’s very different – almost the exact opposite –when one party “terminates” an agreement before it dies on its own; the law sees that as something of a “murder,” that is, one person ending the life of an agreement that, if left alone, would have survived. So, if your agreement did, in fact, “expire” on 12/9/09, then you were free to simply leave that day, without any advance notice of “resignation” or “termination.”

Actually, the law sees it this way: if the agreement by its own words expires on 12/9/09, then both parties had a full year’s notice of when it was ending, and needed no more. 

However, a few words you wrote confused me:  “I know it is common courtesy to give a 30-day notice as per our agreement.” That made me think it is possible that your agreement requires a 30-day notice, no matter what.

From my experience in these matters, though, I’m pretty sure you had to give a 30-day notice if you were terminating your agreement before it expired, not as a condition to its expiration.

You are correct, it would have been a bit more courteous to give some notice, but then again, it seems the salon owner perhaps did not deserve such a courtesy.

Thus, overall, legally and otherwise, it seems you did “right.”

Thanks for writing in. I hope you’ll become a subscriber – it’s free!

          Best, Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

It is interesting to note that my department is outsourcing to India soon and this ranking may disqualify me from receiving a severance package. I did contest the ranking with Employee Relations, on the grounds that it was a forced ranking, to no avail.

Younger, less experienced employees were given better rankings than I was. I am 44 years old. Would I have a case on the grounds that for 9 years I had good reviews until they decided to outsource? Thanks.

        Steve            
        Lynn, Massachusetts

Answer:  Steve, I think yours is the first question ever submitted to our blog about “Forced Ranking,” a management practice that I find abhorrent. When “Forced Ranking” leads to Performance Improvement Plans, or “PIP’s” as they are called, and then used to deny severance, I have only one phrase that I think describes that combination: “Pure Evil.” Forced Ranking was made popular by Jack Welch, former CEO of GE, who I understand thought it was just a great idea. Lucky for him, I don’t think it was ever applied to him. 

This is how “Forced Ranking” works: Everyone must be reviewed and given a score. After that, a certain percentage of people must be terminated – no matter how good they were – on the basis of their “ranking.” So, even if everyone was excellent and wonderful, those who were a bit less excellent and wonderful – even though they were excellent and wonderful – must be laid off.

As an example, let’s say there are 100 employees in the company. Everyone’s performance is assessed. Let’s say 90 of the employees were considered “outstanding,” 5 were considered “excellent,” and 5 others were considered “wonderful.” Now let’s suppose ten people have to be cut. Due to “Forced Ranking,” the 10 employees who were “excellent” and “wonderful” must be laid off, even though they were, in fact, “excellent” and “wonderful.”

(By the way, Forced Ranking is known to make some employees try to sabotage the work of their colleagues; it definitely does not pay to help out a buddy.)

When an employer uses “Performance Improvement Plans” in this process, it is saying, “Even though you are ‘excellent’ and ‘wonderful’ your performance is not good enough.” It is denigrating, it is humiliating, and it is infuriating. More than anything, it is dishonest and fraudulent. In no language on this earth does “excellent work” mean “poor performance,” not even close. It is a ruse, a fraud, a sham, and those who do such things are dishonest and should be shamed for doing so.

Why were you chosen to be treated this way? It might be your age. Then, again, perhaps you are paid a bit more. The motivation is hard to determine. Yes, you have a “slight case” to argue that it was because you are older. With the scant facts available to me, I can’t render much of an opinion.

But as you can see, I have strong opinions about (a) false assessments of performance (which seems to be the case after your 9 good years), (b) fraudulent reports of “needs improvement” (which seems to be the case here), and (c) an obvious monetary motive – to deny severance (which seems to be the case here, too).

I would bring these apparent “improprieties” to the attention of senior-most executives, and possibly the Board of Directors, in emails, for (i) misrepresentation, (ii) fraud, (iii) breach of what is called the “covenant of good faith,” and (iv) defamation. I believe you may have a pretty darn good case, even on the little I know. See if sending a letter to the people on whose desks “the buck stops” resolves things. You might remind them that turning a blind eye to wrongdoing is wrongdoing, in and of itself, and they may one day be held accountable for doing so. 

If this does not work, I suggest you speak with a qualified employment attorney in your locale, and discuss with her or him what I have noted above. If they are a bit creative, aggressive and dynamic, I think you may do well in a negotiation.

Hope that helps. My views of “Forced Ranking” leading to “Performance Improvement Plans” and then “Denial of Severance” is fraud, fraud and then fraud. It is nothing less than shameful.

My very, very best to you. I hope this is helpful. And thanks, too, for reading our blog and writing in. I would very much appreciate it if you’d drop us a line letting us know how you did.

          Best, Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

“When you’re a self-starter, others don’t have to be a crank.”

- Unknown

Being known as a “self-starter” at work is so very, very valuable. It’s a trait that surely makes you a “keeper.” First, it’s so rare. Second, it’s a sure sign you are fully “engaged” in your work. Third, it shows you have the “fire in your belly” that brands an employee as “surely headed upward.” It’s perhaps one of the most important steps toward true job security.

© 2010 Alan L. Sklover. Commercial uses prohibited. All rights reserved and strictly enforced.

Before the end of the time period I was given to improve (60 days), I was diagnosed with something called “Attention Deficit and Hyperactivity Disorder,” or ADHD, and I am being treated for it by a doctor. The doctor says that my ADHD contributed (at least) to my difficulties. At the end of my 60 days, I was told by my supervisor that I was improving, but that I was unsuccessful in my Performance Improvement Plan.

I have 18 years of successful Performance Reviews, and only three years before my retirement. What should I do?

        Martha           
        Weston, West Virginia

Answer: As I hope you have seen, we have several newsletter articles, answers to questions, and even a video on this subject, free for your viewing. I hope you will take the few minutes you may need to help yourself.

I suggest you consider preparing a “PIP Protest Memo,” a memo, to be sent by email, to a high-level executive, and the Head of HR, questioning the validity of the Performance Improvement Plan.

If you would like to obtain a “model” memo to help you respond
to your Performance Improvement Plan [click here]

It is crucial that you mention in your “PIP Protest Memo” your new ADHD diagnosis, which even your doctor believes may be responsible for your not achieving success in the Performance Improvement Plan.

ADHD is a recognized disability, especially if you have been placed on medications. Request, as an “Accommodation to My Disability” a new, different, simpler job description, and a new, different, simpler Performance Improvement Plan, both to be reviewed by your doctor. We have had clients diagnosed with ADHD who have had their employers – as a necessary LEGALLY REQUIRED “accommodation” directed by their doctors – give them one task at a time, instead of multi-tasking, which is often harder to address for those with ADHD.

By the way, it would not be a bad idea to mention how close you are to retirement, to both (a) remind your employer that your “accommodation” will not be necessary for that long, and (b) you may suffer significant harm – inability to get reemployed and potential loss of pension – if you are unfairly, improperly and ILLEGALLY pushed out of your job in this way.

The federal law, and possibly the law in your state, too, requires that employers provide “reasonable accommodations” to those with diagnosed disabilities. This is an important factor in your matter, and I strongly urge you to quickly address the situation as I have suggested above. 

I hope this helps, I really, really do.

          Best, Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

For the past few years, I have increasingly noticed what I call a “migration” of sorts. It seems to me that many of the best, brightest and brashest of my clients, and others, too, have expressed a desire to “migrate” away from the largest corporations, the largest organizations and the largest finance, law, accounting and advertising firms.

Instead, these motivated, successful people – male and female, young and old, of every type there is – have shared with me an inner yearning for two things in their daily work lives: (1) reward for merit, and not politics; and (2) an enhanced sense of meaning in their daily lives. Merit and Meaning.

In a relative “rowboat,” if you are not doing your share of the rowing, it can’t be hidden. Either you’re a valuable member of the team, who does his or her job, or you are not. It’s hard to miss. Not so on a relative “ocean liner,” where how eagerly you salute the captain may make all the difference in your career.

Waking up each morning with a sense of true purpose in your day is an experience like no other. It seems to me that more people are saying, in their own way, “There’s got to be more to life than making a ‘mega’ corporation just that much more ‘mega.’” Perhaps “making a difference” in a world with significant problems is starting to “make a difference” to more people. Perhaps those of us with all we really need in life have discovered there’s joy in helping others not so fortunate. There’s really no greater personal passion than the power of purpose in your life.

The Migration to Merit and Meaning.

© 2010 Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

I have been offered a new job and they want me to start as soon as possible. It would be OK for me to start April 1. However, it’s also “bonus season,” and my present employer pays bonuses on March 30th. I would like to respect the usual two-week notice period. The bonus plan language says “You will not be eligible for bonus if you resign your employment before the payment date.” The way I figure, since technically my resignation is not effective until after the bonuses are paid, I should be safe. 

If I give my present employer two weeks notice on March 16, which means I will still be employed by them on March 30, will my bonus be protected, or jeopardized?

      Name Withheld 
      Oakland, California  

      
Answer: I am very glad you came upon our blog, because otherwise you might not have your bonus. 

For three reasons, I am certain – at least 99.9% certain – that you will LOSE YOUR BONUS if you provide notice of resignation before you receive the bonus amount:

First, the language of the Bonus Plan is not clear, but I think the more logical reading is this: If you give NOTICE of resignation before payment date, you will lose your bonus. That is, the more common sense reading is SUBMISSION of resignation, not effectiveness of resignation. 

Second, in my many years of advising and representing people on bonus issues, I have many, many times seen people in your exact situation: every single one who took a chance and submitted notice of resignation before the bonus payment, indeed, LOST the bonus payment.

Third, understand that bonuses are paid to reward past performance, but from the employer’s perspective, they have a more important purpose:  to incentivize future efforts. For someone who they know is leaving, that second – and more important – purpose is gone.

Please, please, please do not give notice of resignation until you have received your bonus. In fact I go further in counseling my own clients: You should not give notice of resignation until (a) the money is in your account, AND (b) you have moved it to a different bank. Why? That is because, if an employer auto-deposits payments into your bank account, that same employer can – and they sometimes do – take it out later. I’ve seen that happen, even six months later. I counsel clients in your situation to leave only $10 or so, to prevent just that.

As to the “timing” of your transition, I would tell your new employer that you cannot leave your bonus “on the table,” and for this reason you can’t start until the first or second week in April. If your prospective employer really balks at that, you can ask them, “Well, then, would you put into writing that, if I lose out on my bonus, you will pay that amount to me, to ‘make me whole?’” Most employers will just as soon wait the extra week or two.

Thanks for submitting this question. It is a very, very common dilemma, and a question that I am asked by my clients very often, especially this time of year, that is, “bonus season.”

I’m glad you like our blog. Consider Subscribing; It’s free. And if this helped you, please tell your friends that our blog may help them. That’s what this blog is all about.

          Best, Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

The pain and periodic numbness in my legs has affected my ability to work. I’ve just received notice that my job will be over at the end of March due to “lack of business.”

Now doctors at Kansas University Medical Center have found I have a bulging and torn disk which, they say, is a “lifting injury.”

Is it too late to file for workers’ compensation?

        Janelle            
        Pittsburg, Kansas
     

Answer: There is simply no question about it: you should see a Workers’ Compensation attorney in your area who can answer your question with authority. In most states, attorneys cannot accept payment from a client in a case like yours, but must only get paid by an insurance company by order of a workers’ compensation board.  In fact, in New York, to accept a fee in a Workers’ Compensation case directly from a client is enough to get an attorney disbarred!

In Kansas, not only can you get your medical expenses reimbursed, but if you can’t work, or your work is limited, you can collect up to 2/3 of your gross weekly income, to a certain maximum.

Though I am not admitted to practice law in Kansas, my quick review of Kansas law indicates two important things: there is a 75-day deadline to tell your employer about your accident. Hopefully you told your employer about the accident sometime in that time period. Even if you did not, there are possible exceptions to that requirement.

MORE IMPORTANT, it seems that a written claim of the injury must be made to the employer within 200 days to ensure future benefits. That would seem to EXPIRE VERY SOON!!!

I urge you to (1) get the necessary form at the Kansas Workers’ Compensation website, www.dol.ks.gov, or call them at (785) 296-2996 and (2) contact a Workers’ Compensation attorney in your area as soon as possible. You can probably find one by Google or your local bar association referral committee.

Please act swiftly; there’s too much at stake not to. I really hope you will.

          Best, Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

        Sarah          
        Atlanta, Georgia 

Answer: It depends on . . . 

A. If you are a public employee in Georgia, my research indicates that the law gives you a right to review and copy nearly everything in your personnel file.

B. If you are a private sector employee in Georgia, my research indicates that the law does not give you a right to review or copy your personnel file. However, your company may give you that right, if your company has a policy to permit employees to do so. Such a policy would usually be found in its Employee Handbook.

C. If you are a union employee in Georgia, whether you have a right to do so would probably be in your union contract. I suggest you speak with your union representative or shop steward.

          Best, Al Sklover  

© 2010 Alan L. Sklover, All Rights Reserved.

“The guest sees more in an hour than the host sees in a year.”

- Polish Proverb

When people meet us for the first time, they see many things we do not. At your first interview, your first customer meeting, or your first Board presentation, pay attention to your “personal detail.” Others will, and first impressions are lasting ones.

© 2010 Alan L. Sklover. Commercial uses prohibited. All rights reserved and strictly enforced.