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	<title>Sklover Working Wisdom</title>
	
	<link>http://skloverworkingwisdom.com/blog</link>
	<description>Your Interactive Mentor on Job and Career</description>
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		<title>“Could I get in trouble for ‘going public’ about a threat to public welfare that my company covered up?”</title>
		<link>http://skloverworkingwisdom.com/blog/index.php/%e2%80%9ccould-i-get-in-trouble-for-%e2%80%98going-public%e2%80%99-about-a-threat-to-public-welfare-that-my-company-covered-up%e2%80%9d/</link>
		<comments>http://skloverworkingwisdom.com/blog/index.php/%e2%80%9ccould-i-get-in-trouble-for-%e2%80%98going-public%e2%80%99-about-a-threat-to-public-welfare-that-my-company-covered-up%e2%80%9d/#comments</comments>
		<pubDate>Wed, 08 Sep 2010 06:00:11 +0000</pubDate>
		<dc:creator>Alan L Sklover</dc:creator>
				<category><![CDATA[Q & A]]></category>
		<category><![CDATA[Speaking Out and Retaliation]]></category>

		<guid isPermaLink="false">http://skloverworkingwisdom.com/blog/?p=5255</guid>
		<description><![CDATA[Question: There was an incident I was involved in that involved a threat to public welfare. My company covered up what happened. Since then, we were all threatened with loss of our jobs if the information about what happened got out. I am now under a Performance Improvement Plan and I anticipate that I will...<br /><a href="http://skloverworkingwisdom.com/blog/index.php/%e2%80%9ccould-i-get-in-trouble-for-%e2%80%98going-public%e2%80%99-about-a-threat-to-public-welfare-that-my-company-covered-up%e2%80%9d/">Read the rest of this blog post &#187;</a>]]></description>
			<content:encoded><![CDATA[<p><span style="text-decoration: underline;"><strong>Question:</strong></span> There was an incident I was involved in that involved a threat to public welfare. My company covered up what happened.</p>
<p>Since then, we were all threatened with loss of our jobs if the information about what happened got out.</p>
<p>I am now under a Performance Improvement Plan and I anticipate that I will be fired.</p>
<p>Am I culpable in any way if I “go public” with this information?</p>
<p style="text-align: right;">         Name Withheld<br />
         Bradenton, Florida</p>
<p><span style="text-decoration: underline;"><strong>Answer:</strong></span> This is a very important question, and one that requires a rather complicated answer. Part of the reason the answer is so complicated is that you have not provided me with all necessary facts. Another reason the answer is complicated is that “whistleblowing” and its possible consequences is a very complicated subject. There are many facts and factors to weigh.  Nonetheless, I will do my best to answer your question; I hope you will have patience in reviewing my answer:</p>
<p><strong>1.</strong> <span style="text-decoration: underline;">No Guarantees regarding Human Behavior:</span> There is no way any of us can be confident when we are trying to predict how human beings will act, or react, to something we do. For this reason, it is always possible to “get in trouble” when you take a step, any step, of any kind, whether it’s a “right step,” a “wrong step,” or neither. At the same time, you may get in “worse trouble” if you don’t take any steps at all. From decades of counseling “whistleblowers” I view the unpredictability of “going public” to be very high. Some people applaud “whistleblowers,” while some people view them in a negative light.</p>
<p><strong>2.</strong> <span style="text-decoration: underline;">How Were You “Involved?”:</span> You have written “I was involved” in the incident, but you haven’t provided any details. If the incident entailed a “threat to public welfare,” then if you were either the primary planner, a primary participant, or if you enjoyed the “fruits” of the incident, you surely could be held culpable for your involvement in the incident, whether or not you “go public” with it.</p>
<p><strong>3.</strong> <span style="text-decoration: underline;">What Do You Mean by “Going Public?”:</span> A lot also depends on what you mean by “going public.” On the one hand, if by “going public” you mean writing what happened on a website on the internet, or telling a newspaper reporter what happened, you could be defaming people if you make any factual errors in what you say. If you make a mistake about what you “went public” with, that could end up with you being sued for damage to someone’s reputation, called defamation.  On the other hand, if by “going public” you mean writing a respectful, dignified letter to the members of the company’s Board of Directors, and/or a government agency, the law in most states provides you with a significant degree of protection from potential lawsuits claiming damage to reputation.</p>
<p><strong>4.</strong> <span style="text-decoration: underline;">A Note About Prosecutors:</span> Sometimes it may be best to request a confidential meeting with your local prosecutor. However if you do so you really should consult first with experienced legal counsel. My friends who practice criminal defense law tell me that it is often the case that people who approach prosecutors about incidents in which they, themselves, were “involved,” often are the first people indicted. This may sound surprising, but I am told that from a prosecutor’s perspective, that is the best way to make sure you continue to cooperate with them in their investigation and prosecution of others.</p>
<p><strong>5.</strong> <span style="text-decoration: underline;">Beware of Confidentiality Obligations:</span> Depending on how you intend to “go public” you might be violating – or be accused of violating – the company’s policies regarding “confidentiality” of company information. For this, alone, you could surely lose your job.</p>
<p><strong>6.</strong> <span style="text-decoration: underline;">Specific Laws Might Protect You:</span> Depending on the “public welfare” you say was endangered, and your manner of “going public,” there may be state or federal laws to protect your “going public.” For example, if a factory was letting dangerous chemicals discharge into a public water system, your “going public” could be protected under certain state laws protecting public health.</p>
<p><strong>7.</strong> <span style="text-decoration: underline;">Your Performance Improvement Plan:</span> You mentioned that you are now on a Performance Improvement  Plan, but you did not express a belief that your involvement in the “incident” was related to, or caused, your being placed on that Performance Improvement Plan. As readers of our blog know, Performance Improvement Plans are often dishonestly used to “target” certain employees. If you believe you were placed on your Performance Improvement Plan to stop you from “going public,” you may have a strong legal and negotiating case against your employer.</p>
<p><strong>8.</strong> <span style="text-decoration: underline;">Possible Effect on Re-employment:</span> One thing to consider would be whether your “going public” might affect your chances for re-employment. While I believe such fears are overblown, I cannot deny that some potential future employers could hold your “going public” against you. This, I believe, is the number one reason most people do not stand up and speak out, even when you know it is the right, best and only moral thing to do.   </p>
<p><strong>9.</strong> <span style="text-decoration: underline;">My Suggestion:</span> For these reasons, and others, I suggest you locate and consult with a local attorney who is experienced in the representation of employee “whistleblowers.” While I often counsel employees to try to address problems themselves, what you describe seems so potentially risky – for a number of different reasons – I recommend you consider the use of an attorney experienced in these areas to guide you in going forward. If you cannot find one, as part of our blog efforts, for a nominal fee we will locate qualified employment attorneys for people in your situation; if interested, [[<a href="http://skloverworkingwisdom.com/blog/index.php/legal-consultation-and-representation/#counsel">click here.</a>]] By consulting with an attorney experienced in these matters – who will ask you all the questions I wish I could – you do not have to hire him or her, but you will better “arm” yourself with the wisest choice before going forward, or not doing so. </p>
<p> Standing up for yourself, speaking the truth and doing the right thing is, sadly, often a rather complicated and risky step to take. On the other hand, it can be the best thing to do – for yourself, for your employer, and even for your community. There’s a great deal of satisfaction to be gained by staring “wrong” in the face and not flinching. Personally, I find these cases to be the ones I most enjoy and look back upon with positive feeling.  </p>
<p> I hope this has been helpful to you, and I wish you the best in going forward on whatever path you choose.<br />
           </p>
<p style="text-align: right;">Best, Al Sklover</p>
<p>©  2010 Alan L. Sklover, All Rights Reserved.</p>
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		<title>“How can I stop my resume from being used for unauthorized purposes?”</title>
		<link>http://skloverworkingwisdom.com/blog/index.php/%e2%80%9chow-can-i-stop-my-resume-from-being-used-for-unauthorized-purposes%e2%80%9d/</link>
		<comments>http://skloverworkingwisdom.com/blog/index.php/%e2%80%9chow-can-i-stop-my-resume-from-being-used-for-unauthorized-purposes%e2%80%9d/#comments</comments>
		<pubDate>Tue, 07 Sep 2010 06:00:53 +0000</pubDate>
		<dc:creator>Alan L Sklover</dc:creator>
				<category><![CDATA[Employment Info and Insight]]></category>
		<category><![CDATA[New Jobs and Promotions]]></category>
		<category><![CDATA[Q & A]]></category>

		<guid isPermaLink="false">http://skloverworkingwisdom.com/blog/?p=5237</guid>
		<description><![CDATA[Question: Alan, I recently received a telephone call inviting me to apply for a position with a construction management company. I was asked to send a resume to them, so I did so in a “protected” fashion, that is, by a scanned-in version, with my present employer unnamed. I then received a second call requesting...<br /><a href="http://skloverworkingwisdom.com/blog/index.php/%e2%80%9chow-can-i-stop-my-resume-from-being-used-for-unauthorized-purposes%e2%80%9d/">Read the rest of this blog post &#187;</a>]]></description>
			<content:encoded><![CDATA[<p><span style="text-decoration: underline;"><strong>Question:</strong></span> Alan, I recently received a telephone call inviting me to apply for a position with a construction management company. I was asked to send a resume to them, so I did so in a “protected” fashion, that is, by a scanned-in version, with my present employer unnamed. I then received a second call requesting that I re-send my resume in an “unprotected” way, that is, word-processed and including the name of my present employer.</p>
<p>Later I was told that, by cutting and pasting, my resume was being used by the construction management company as part of a business proposal they were submitting. I never authorized them to do that, and I’m upset about it.</p>
<p>What are my options? Would you know of an attorney who might help me?</p>
<p style="text-align: right;">John<br />
Fond Du Lac, Wisconsin</p>
<p><span style="text-decoration: underline;"><strong>Answer:</strong></span> John, in my decades of helping employees, it’s only been a few times that I have heard of such a thing happening. What that prospective employer did is not right, but I’m not sure anything they did was actually illegal, either.</p>
<p>Before we consider your options I think it may be wise to stop a moment, and consider why the prospective employer has done what it did. Remember that the key to dealing with someone else is first understanding why they have done something, that is, what motivates their behavior.</p>
<p>It seems to me that the prospective employer may believe that, if they hired you,  they could get a new piece of business, and they don’t want to risk hiring you unless they first get that new piece of business. What does that mean for you? Well, it seems like they might just have – now or later – a job for you. Hey – that can’t be bad. Bear that in mind when considering your options.</p>
<p>First, I suggest you try to remedy the situation by yourself: In a polite letter, send directly to the company’s HR Director (or President, if they don’t have one), ask if they would consider stopping what they seem to be doing, unless they first get your permission, which you might give them if you have a better idea of who they are sending your information to. Tell him or her that you sure do think you could help them, both get new business, or keep new business, if they hired you. However you would appreciate their keeping in mind your concerns, too.</p>
<p>Second, if that is not the way you want to go, or if that does not get you a response you like, then you should sent a second letter, this one also polite but stern, too, demanding that they promptly “cease and desist” the unauthorized dissemination of your resume. Ask, too, for a written response in which the HR Director (or President) assures you that the practice of disseminating your resume without your permission will be halted, immediately. This letter should definitely be sent Certified Mail, Return Receipt Requested.</p>
<p>Third, you could also consider hiring an attorney. However that should always be your last resort for several reasons, including the cost. That being said, this is the kind of matter that, in my opinion, almost any attorney in your city could send such a letter for you. If you would like us to assist you in that way by providing three capable attorneys in your city, we do offer that service for a minimal fee; simply [<a href="http://skloverworkingwisdom.com/blog/index.php/legal-consultation-and-representation/#counsel">click here</a>] if you are interested.</p>
<p>Finally, bear in mind that, if you send out resumes, this could happen to you again. Do not share information you do not want shared with others. Also, you might place in your transmittal letter “Please do not send my resume, or any portion of it, to anyone else without first obtaining my written permission to do so.” That can only help you.</p>
<p>Hope this helps.</p>
<p style="text-align: right;">Best, Al Sklover</p>
<p>©  2010 Alan L. Sklover, All Rights Reserved.</p>
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		<title>Sklover’s Thought for the Work Week</title>
		<link>http://skloverworkingwisdom.com/blog/index.php/sklovers-thought-for-the-work-week-11/</link>
		<comments>http://skloverworkingwisdom.com/blog/index.php/sklovers-thought-for-the-work-week-11/#comments</comments>
		<pubDate>Mon, 06 Sep 2010 06:00:18 +0000</pubDate>
		<dc:creator>Alan L Sklover</dc:creator>
				<category><![CDATA[Thought for the Week]]></category>

		<guid isPermaLink="false">http://skloverworkingwisdom.com/blog/?p=5204</guid>
		<description><![CDATA[“Get your facts first, and then you can distort them as much as you please.” -Mark Twain Did someone say “lawyers”? As a long-time member of the distinguished legal profession, I am continually amazed at how there can exist ten different versions of the facts and circumstances of one event. Recently I asked a retired...<br /><a href="http://skloverworkingwisdom.com/blog/index.php/sklovers-thought-for-the-work-week-11/">Read the rest of this blog post &#187;</a>]]></description>
			<content:encoded><![CDATA[<p><img style="border: 0px none;" src="http://skloverworkingwisdom.com/blog/wp-content/uploads/2008/04/coffee-cup.jpg" border="0" alt="Featured Coffee Cup" align="right" /></p>
<p style="font-size: 180%; color: #9f0000;">“Get your facts first, and then you can distort them as much as you please.”</p>
<p><big style="color: #9f0000;">-Mark Twain </big></p>
<p>Did someone say “lawyers”? As a long-time member of the distinguished legal profession, I am continually amazed at how there can exist ten different versions of the facts and circumstances of one event. Recently I asked a retired Judge if it bothered him that half of all the people who spoke with him daily in Court were lying to him. His response contained the wisdom of experience: “I choose to believe instead that everyone told me half-truths.” At work, use emails whenever you are making important statements, filing important complaints, or responding to allegations of any kind. Emails create a clear, undeniable, permanent record of the truth, that is difficult to distort, even by the best “distorters.” Did someone say “lawyers”?<br />
<span style="font-size: xx-small; font-family: Times New Roman;"><br />
© 2010 Alan L. Sklover. All Rights Reserved. Commercial Use Prohibited.</span><span style="font-size: medium;"> </span></p>
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		<title>“If I sign a Performance Improvement Plan, if I am let go, might I get a Severance Package?”</title>
		<link>http://skloverworkingwisdom.com/blog/index.php/%e2%80%9cif-i-sign-a-performance-improvement-plan-if-i-am-let-go-might-i-get-a-severance-package%e2%80%9d/</link>
		<comments>http://skloverworkingwisdom.com/blog/index.php/%e2%80%9cif-i-sign-a-performance-improvement-plan-if-i-am-let-go-might-i-get-a-severance-package%e2%80%9d/#comments</comments>
		<pubDate>Sun, 05 Sep 2010 06:00:40 +0000</pubDate>
		<dc:creator>Alan L Sklover</dc:creator>
				<category><![CDATA[Performance Improvement Plans]]></category>
		<category><![CDATA[Q & A]]></category>
		<category><![CDATA[Severance Packages]]></category>

		<guid isPermaLink="false">http://skloverworkingwisdom.com/blog/?p=5126</guid>
		<description><![CDATA[Question: I have worked for a Fortune 500 company for five years as a Sales Executive. Actually, I started working for a small start-up company five years ago, and we have been bought out twice; that is how I find myself with this large company. I am the number one Sales Leader in my division....<br /><a href="http://skloverworkingwisdom.com/blog/index.php/%e2%80%9cif-i-sign-a-performance-improvement-plan-if-i-am-let-go-might-i-get-a-severance-package%e2%80%9d/">Read the rest of this blog post &#187;</a>]]></description>
			<content:encoded><![CDATA[<p><span style="text-decoration: underline;"><strong>Question:</strong></span> I have worked for a Fortune 500 company for five years as a Sales Executive. Actually, I started working for a small start-up company five years ago, and we have been bought out twice; that is how I find myself with this large company. I am the number one Sales Leader in my division. I really do not at all think that placing me on a Performance Improvement Plan (or PIP as they call it) makes any sense.</p>
<p>I feel like I am “between a rock and a hard place.” If I sign the PIP, it seems I am agreeing that my performance needs improvement, and I am agreeing that they can fire me if my performance does not improve; sort of like signing your own “death sentence.” If I don’t sign the PIP, I am told I will be fired for insubordination.</p>
<p>Because of the way I have been treated lately I really don’t see myself staying with this company very much longer. If anything, though, I think I deserve a better-than-average severance package, considering both how much I’ve done for this company, and what they are putting me through.</p>
<p>Any thoughts on what I might do?</p>
<p style="text-align: right;">         Name Withheld<br />
         Belmont, California</p>
<p><span style="text-decoration: underline;"><strong>Answer:</strong></span> If you are a regular visitor to our Blog, you’ve surely read that your Performance Improvement Plan, and how you’re feeling, are not unusual. There’s a virtual epidemic of “PIP’s” going on out there, all over the world.</p>
<p>Generally, employees are not given severance packages if the required “Performance Improvement” does not take place within the permitted period of time, which is generally 30, 60, or 90 days. This is based on the employer’s perspective that, if severance is to be paid to any employees, they should only be employees who are downsized or laid off having nothing to do with their conduct or performance.</p>
<p>Some employers give employees in your situation a choice: either (a) attempt to succeed in the Performance Improvement Plan, or (b) resign, and accept a minimal severance package, which is generally two or four weeks’ pay.</p>
<p>We generally– but not always – counsel our clients in your situation to assess whether they think the Performance Improvement Plan is, in the first instance, made in good faith, and possibly attainable. If it is, then trying to succeed in it is an option. When there does not appear to be good faith, then we generally suggest “pushing back” at the fundamental dishonesty of the facts, the false conclusion that your performance is lacking, the unfairness of the process, and the often improper motives behind why the Performance Improvement Plan was initiated to begin with.</p>
<p>In our experience it is the employees who “push back” in this way who are usually – though not always –  the recipients of fair severance packages.</p>
<p>I strongly suggest that you review several of our articles in our blog’s Performance Improvement Plan library section [[<a href="http://skloverworkingwisdom.com/blog/index.php/newsletter-library/#j">click here</a>]], watch our video on How to Push Back at a PIP [[<a href="http://skloverworkingwisdom.com/blog/index.php/category/monthly-vidcast/#4">click here</a>]], and decide what your best course of action will be. We also have available a model letter for your adaptation to send to senior management in our Model Letter section [[<a href="http://skloverworkingwisdom.com/blog/index.php/sklovers-model-letters-agreements-and-checklists/#jobissues">click here</a>]] should you decide to “Stand Up and Push Back.”</p>
<p>Your dilemma is a tough one, but one that many, many people have successfully resolved.</p>
<p style="text-align: right;">           Best, Al Sklover</p>
<p>© 2010 Alan L. Sklover, All Rights Reserved.</p>
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		<title>Did You Know That . . . ?</title>
		<link>http://skloverworkingwisdom.com/blog/index.php/did-you-know-that-2/</link>
		<comments>http://skloverworkingwisdom.com/blog/index.php/did-you-know-that-2/#comments</comments>
		<pubDate>Sat, 04 Sep 2010 06:00:38 +0000</pubDate>
		<dc:creator>Alan L Sklover</dc:creator>
				<category><![CDATA[Did You Know]]></category>

		<guid isPermaLink="false">http://skloverworkingwisdom.com/blog/?p=5046</guid>
		<description><![CDATA[If you face financial hardships &#8211; including medical, college tuition or mortgage financial difficulties you can take either a “Hardship Withdrawal” or “Loan to Yourself” from your 401k savings. There are rules and limitations, but this may be a wise way to deal with truly difficult circumstances. For info, go to www.IRS.gov or consult with your...<br /><a href="http://skloverworkingwisdom.com/blog/index.php/did-you-know-that-2/">Read the rest of this blog post &#187;</a>]]></description>
			<content:encoded><![CDATA[<p><img class="alignright size-full wp-image-5040" title="surprised older woman" src="http://skloverworkingwisdom.com/blog/wp-content/uploads/2010/08/surprised-older-woman1.jpg" alt="" width="300" height="239" />If you face financial hardships &#8211; including medical, college tuition or mortgage financial difficulties you can take either a “Hardship Withdrawal” or “Loan to Yourself” from your 401k savings. There are rules and limitations, but this may be a wise way to deal with truly difficult circumstances. For info, go to <a href="http://www.IRS.gov">www.IRS.gov</a> or consult with your tax professional.</p>
<p><small><br />
© 2010 Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.</small></p>
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		<title>“Can a job offer be rescinded if my new employer finds out I was terminated from my previous employer?”</title>
		<link>http://skloverworkingwisdom.com/blog/index.php/%e2%80%9ccan-a-job-offer-be-rescinded-if-my-new-employer-finds-out-i-was-terminated-from-my-previous-employer%e2%80%9d/</link>
		<comments>http://skloverworkingwisdom.com/blog/index.php/%e2%80%9ccan-a-job-offer-be-rescinded-if-my-new-employer-finds-out-i-was-terminated-from-my-previous-employer%e2%80%9d/#comments</comments>
		<pubDate>Fri, 03 Sep 2010 06:00:39 +0000</pubDate>
		<dc:creator>Alan L Sklover</dc:creator>
				<category><![CDATA[New Jobs and Promotions]]></category>
		<category><![CDATA[Q & A]]></category>

		<guid isPermaLink="false">http://skloverworkingwisdom.com/blog/?p=5129</guid>
		<description><![CDATA[Question: Can a job offer be rescinded if my new employer finds out I was terminated from my old employer?          Name Withheld          New York, New York Answer: Yes. Job offers can be rescinded for almost any reason, other than legally impermissible reasons such as illegal discrimination or illegal retaliation. If you told your new employer...<br /><a href="http://skloverworkingwisdom.com/blog/index.php/%e2%80%9ccan-a-job-offer-be-rescinded-if-my-new-employer-finds-out-i-was-terminated-from-my-previous-employer%e2%80%9d/">Read the rest of this blog post &#187;</a>]]></description>
			<content:encoded><![CDATA[<p><span style="text-decoration: underline;"><strong>Question:</strong></span> Can a job offer be rescinded if my new employer finds out I was terminated from my old employer?</p>
<p style="text-align: right;">         Name Withheld<br />
         New York, New York</p>
<p><span style="text-decoration: underline;"><strong>Answer:</strong></span> Yes. Job offers can be rescinded for almost any reason, other than legally impermissible reasons such as illegal discrimination or illegal retaliation.</p>
<p>If you told your new employer that you were not terminated, and it turns out that you were in fact terminated, and in this way you were caught in a lie, it is to be expected that the job offer will be rescinded.</p>
<p>Both employer and employee are expected to be truthful during the application-interview-hiring process.</p>
<p>Hope this helps.</p>
<p style="text-align: right;">           Best, Al Sklover</p>
<p>©  2010 Alan L. Sklover, All Rights Reserved.</p>
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		<title>Making Arbitration Work for You, Not Against You – “Sklover’s Arbitration Rules”</title>
		<link>http://skloverworkingwisdom.com/blog/index.php/making-arbitration-work-for-you-not-against-you-%e2%80%9csklover%e2%80%99s-arbitration-rules%e2%80%9d/</link>
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		<pubDate>Thu, 02 Sep 2010 06:00:24 +0000</pubDate>
		<dc:creator>Alan L Sklover</dc:creator>
				<category><![CDATA[Monthly Newsletter Library]]></category>

		<guid isPermaLink="false">http://skloverworkingwisdom.com/blog/?p=5119</guid>
		<description><![CDATA[“False scales are an abomination to the Lord. But a just weight is His delight.” - Old Testament, Proverbs 11:1 ACTUAL CASE HISTORY*: Jasmine, 42, a senior executive at a major fragrance company had a clear written employment contract that guaranteed her – unconditionally – a minimum annual cash bonus of $120,000. When her employer...<br /><a href="http://skloverworkingwisdom.com/blog/index.php/making-arbitration-work-for-you-not-against-you-%e2%80%9csklover%e2%80%99s-arbitration-rules%e2%80%9d/">Read the rest of this blog post &#187;</a>]]></description>
			<content:encoded><![CDATA[<p style="text-align: center;"><strong>“False scales are an abomination to the Lord.<br />
But a just weight is His delight.”</strong></p>
<p style="text-align: center;"><strong>- Old Testament, Proverbs 11:1</strong></p>
<p style="text-align: left;"><strong><span style="text-decoration: underline;">ACTUAL CASE HISTORY*:</span></strong> Jasmine, 42, a senior executive at a major fragrance company had a clear written employment contract that guaranteed her – unconditionally – a minimum annual cash bonus of $120,000. When her employer was three weeks late in paying her, she submitted a polite email inquiry to HR, asking when the bonus would be paid. The response was simple, and surprising: “Because business was not good, the company has decided that, regardless of contractual obligations, no bonuses will be paid this year.” Soon after Jasmine found a new position with a different employer, and consulted our firm about how she could collect the $120,000 bonus due her.</p>
<p>Jasmine’s employment contract provided that “Any and all disputes will be resolved by binding arbitration under the auspices of the American Arbitration Association (called the ‘AAA.’)” Jasmine was happy, because she heard that arbitration was faster, easier, less formal and less expensive than the usual court-litigation process. We were not so happy, because from our experience with arbitrations in recent years, and especially with arbitrations using the American Arbitration Association, we knew that arbitration has increasingly become slower, more difficult, often more formal and always more expensive than the usual court-litigation process.</p>
<p>Sadly, it turned out we were right. The arbitrator appointed by the AAA considered herself an expert arbitrator, and told us so every few minutes. Her schedule was very busy – as was apparently her personal life – so it often took months to get her to answer requests. She was quite a stickler for detail: Her own “rules” required all communications to be in writing, sent a certain way, using a certain font and font size, and specified margins. Worst of all, she announced early on that, in order to review the two sides’ submitted materials, she needed to first be paid for “study time” of $50,000, half from each side. She also mentioned that the Hearing could not take place for at least 18 months, and that it would require additional fees of $20,000 from each side. That did not include her fees for the time at a Hearing, or her fees for what she called “post-Hearing” consideration of the record.</p>
<p>We inquired with the AAA whether anything could be done to rein in what seemed like abusive behavior of several kinds. “No,” we were told, “AAA arbitrators are free to set ground rules.” At the conclusion, Jasmine won her $120,000, but it cost her $30,000 in legal fees and $75,000 in arbitrator fees, and it took almost three years.  End result: it was a bad, difficult, drawn-out, negative and very expensive experience for all concerned. Except the Arbitrator; she seemed to enjoy every minute.</p>
<p><span style="text-decoration: underline;"><strong>LESSON TO LEARN:</strong></span> For many years, arbitration was seen as a less formal, more efficient, less expensive and faster way to resolve disputes. And, for many years, it was those things. Essentially, you submitted a written Statement of Claim, the other side submitted an Answer, and then you met with a person – often a retired judge –  and hashed out your differences. A week or two later, the retired judge rendered his or her decision, and the parties honored it. That sure seemed good. Wow, things sure have changed over time.</p>
<p>Increasingly – and especially if the American Arbitration Association was used – arbitration became more difficult, much more expensive, less efficient, and slower than court litigation. Arbitrators now often seem to stretch out the case to make more money; Judges in court do the opposite: try to move cases along quickly. Now arbitrators often require more formality than Court Judges do. Now arbitrations almost always cost much more than does court litigation, and even last years – or as long as the arbitrators want them to, because the longer the arbitration, the more the parties have to pay the arbitrators. Clients are not happy, lawyers are not happy. Only arbitrators seem to like the present system.</p>
<p>But here is the key: If you take control of the process – and you can &#8211; you can use the old ease, informality, brevity and inexpensive nature of arbitration to enhance your interests, not the interests of the arbitrator or the arbitration company.</p>
<p>How do you do that? You do so by making the “arbitration rules” yourself, and insisting that the arbitrator follow them; otherwise you will take your “business” elsewhere. You can do that by insisting on inserting what we affectionately call “Sklover’s Arbitration Rules” into (a) every employment-related document and agreement you sign, and (b) if there isn’t any employment-related agreement, then suggesting to your “partner-in-dispute” that using Sklover’s Arbitration Rules when commencing an arbitration is surely in both of your interests.</p>
<p>The key to doing so is to control the process so that, no matter who “wins” or “loses,” at least it will not end up making both “partners-in-dispute” miserable, frustrated and poor, while making the arbitrator happy, comfortable and rich.  It is not certain that your “partner in dispute” will agree to such a process, but you can only make it more probable if you can illustrate the many advantages they will enjoy. In recent years, we have found that more and more attorneys for both employees and employers find our “Sklover’s Arbitration Rules” to be fair, smart and effective in reaching a conclusion to disputes – which is in everyone’s interests. Well, not “everyone.”</p>
<p><span style="text-decoration: underline;"><strong>WHAT YOU CAN DO:</strong></span> Here are what we call “Sklover’s Arbitration Rules” we recommend you request these either be inserted into every employment-related document you sign, or be used as a separate agreement to control every employment–related dispute resolution process you engage in. Of course, they can be modified as the parties may decide is more suitable to them, their circumstances, and their interests:</p>
<p><span id="more-5119"></span></p>
<p style="text-align: center;"><strong>Agreement about Arbitration and its Rules</strong></p>
<p><strong>1.</strong> <span style="text-decoration: underline;">Agreement to Arbitrate:</span> The two parties signing below (“Parties”) agree to resolve every claim and/or dispute between them by submission to binding arbitration using this set of rules, timetables and procedures, and such other rules, timetables and procedures of the dispute resolution company (defined below) that are not inconsistent with these.</p>
<p><strong>2.</strong> <span style="text-decoration: underline;">Company; Location; Law; Administrative Fee:</span> (a) The arbitration will be initiated and conducted under the auspices of any independent dispute resolution company (“DRC”) without conflicting interests, provided that the DRC (b) is not the American Arbitration Association, and (c) first agrees in writing that it and its arbitrator will honor and abide by this set of agreed arbitration rules, timetables and procedures. (d) The arbitration will be conducted in the city or town where the employee did most of his or her work, and (e) under the laws of that state, without regard to the laws of any other state.</p>
<p><strong>3.</strong> <span style="text-decoration: underline;">The Single Arbitrator:</span> One retired judge will be used to arbitrate the dispute(s), to be paid according to his or her usual hourly or daily fee schedule, chosen randomly by the DRC from its list of available arbitrators, who must first agree in writing to honor and abide by these rules, timetables and procedures.</p>
<p><strong>4.</strong> <span style="text-decoration: underline;">Claim:</span> The party initiating the arbitration (“Claimant”) must file three (3) copies of its claim  (“Claim”) against the other party (“Respondent”) with the DRC, and simultaneously serve the Respondent with a copy, which must include (a) a completed DRC form used for this purpose, (b) all appropriate identifying and locating information about the “Respondent,”  (c) its version of the facts of the dispute(s), (d) a summary of what it believes is the applicable law, (e) the damages alleged, and (f) the relief sought. Filing and serving must be made by Federal Express or UPS overnight delivery (“Required Notice.”)</p>
<p><strong>5.</strong> <span style="text-decoration: underline;">Answer:</span> The Respondent must (a) file three (3) copies its Answer with the DRC, and (b) serve one copy of the Answer upon the Claimant, both by Required Notice, within ten (10) calendar days after its receipt of the Claim.</p>
<p><strong>6.</strong> <span style="text-decoration: underline;">Counterclaim(s), If Any:</span> If the Respondent chooses to file and serve Counterclaim(s) against the Claimant, it must do so at the same time it files and serves its Answer, with three (3) copies to the DRC and one to the Claimant, who will then have ten (10) calendar days in which to file and serve its Answer to Counterclaim with the DRC and Respondent by Required Notice.</p>
<p><strong>7.</strong> <span style="text-decoration: underline;">Administrative Pre-Hearing Telephone Conference:</span> Within no more than seven (7) days after pleadings are served, a pre-hearing telephonic conference will take place during which the arbitrator and the Parties’ counsel will discuss any open issues and administrative matters.</p>
<p><strong>8.</strong> <span style="text-decoration: underline;">Discovery:</span> There will be no depositions. If either party desires any production of documents prior to the Hearing, a reasonably, concise description of those documents must be included in a separate section of the Claim or Answer (or Counterclaim and Answer to Counterclaim.) The party requested to provide documents will do so, to its best ability, within seven (7) calendar days after receipt of the Claim or Answer (or Counterclaim or Answer to Counterclaim.) The arbitrator will consider any (a) deviation from these timetables, or (b) declining to provide documents appearing unreasonable, to be an admission by the party deviating from the schedule or declining to produce documents against the interests of the party in violation, and that those documents would show facts supportive of the requesting party. Claimant and Respondent agree that these procedures are fair and reasonable, entered into voluntarily, and fulfill fundamental due process.</p>
<p><strong>9.</strong> <span style="text-decoration: underline;">The Hearing:</span> The Hearing will take place within twenty (20) calendar days of the service and filing of the Answer (or Answer to Counterclaim, if any). Each party will have four (4) hours to present its case, including its documents, witnesses and final summary argument(s), if any. Formal rules of evidence will not be required; motions of any kind will be highly discouraged.</p>
<p><strong>10.</strong> <span style="text-decoration: underline;">The Award:</span> The arbitrator will render his or her award within seven (7) calendar days of the Hearing, in writing, to be delivered by email to both parties’ counsel, without reasoned explanation. The award may allocate the arbitrator’s fees, but will not allocate attorneys’ fees; each party will be responsible for its own legal costs. Each party will be responsible for one half of the DRC’s administrative fees. The award may be submitted for judicial confirmation to any court in the city in which the Hearing took place.</p>
<p>This is the way to “take back the arbitration process” by using (a) the power of competition for business, (b) mutual fairness, and (c) the simple clarity. Let’s all not fear to raise concerns or issues, and let’s all get back to a reasonable way of resolving disputes.</p>
<p>These “Sklover’s Arbitration Rules” are based in the fundamental notion that resolution of disputes in an informal, cost-efficient and prompt manner is in the interests of all – other than the arbitrators’ and arbitration companies’ – so that we can all get back to the business of business. Do your best to insist on using these rules, timetables and procedures to your best interests.</p>
<p>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 think “out of the box,” and avoid risks at every point in your career. Knowing ways to resolve disputes when they arise is a distinct advantage in navigating workplace life. Learning the “in’s and out’s” of reducing employment risk are available on our blogsite. Now it’s up to you.</p>
<p>Always be proactive.  Always be creative.  Always be persistent.  Always be vigilant. 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.</p>
<p><span style="text-decoration: underline;">*A note about our Actual Case Histories:</span> 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.</p>
<p><span style="text-decoration: underline;">Please Note:</span> This Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.</p>
<p>© 2010, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.</p>
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		<title>“If I receive severance payments over time, will that count toward the time I need to vest in the company retirement plan?”</title>
		<link>http://skloverworkingwisdom.com/blog/index.php/%e2%80%9cif-i-receive-severance-payments-over-time-will-that-count-toward-the-time-i-need-to-vest-in-the-company-retirement-plan%e2%80%9d/</link>
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		<pubDate>Wed, 01 Sep 2010 06:00:38 +0000</pubDate>
		<dc:creator>Alan L Sklover</dc:creator>
				<category><![CDATA[Benefits, Pensions and Perq's]]></category>
		<category><![CDATA[Q & A]]></category>
		<category><![CDATA[Severance Packages]]></category>

		<guid isPermaLink="false">http://skloverworkingwisdom.com/blog/?p=5082</guid>
		<description><![CDATA[Question: Our company is going through a reorganization. I have only four months to go in order to fully vest in our Retirement Plan. I work for a new Department Head, and she is bringing in her own people to staff the department. My contract was approved for another year prior to her becoming my...<br /><a href="http://skloverworkingwisdom.com/blog/index.php/%e2%80%9cif-i-receive-severance-payments-over-time-will-that-count-toward-the-time-i-need-to-vest-in-the-company-retirement-plan%e2%80%9d/">Read the rest of this blog post &#187;</a>]]></description>
			<content:encoded><![CDATA[<p><span style="text-decoration: underline;"><strong>Question:</strong></span> Our company is going through a reorganization. I have only four months to go in order to fully vest in our Retirement Plan.</p>
<p>I work for a new Department Head, and she is bringing in her own people to staff the department. My contract was approved for another year prior to her becoming my Department Head, but I know she wants to replace me with a friend of hers.</p>
<p>What do you think my chances are of negotiating a severance package to last at least four months so that I remain on the payroll and get to my vesting date?</p>
<p style="text-align: right;">         Maggie<br />
         San Francisco, California</p>
<p><span style="text-decoration: underline;"><strong>Answer:</strong></span> Maggie, I receive many questions like yours from people who are near vesting in their retirement, stock or other benefit plans. Like you, they all fear losing out on significant benefits earned over years for a reason they cannot control.</p>
<p>First, you must understand that almost every retirement plan I have ever seen says words to the effect, “You must be a full-time employee in good standing on the date of vesting in order to vest.” On the other hand, severance is not generally paid to employees, but only to former employees. For this reason, I believe it is very unlikely that your employer would count time that you are being paid severance – which is only paid to former employees – toward vesting in the retirement plan. You must read the retirement and severance plans very carefully on this point, or send an email to the Head of Human Resources and ask him or her to give you information on this very point.</p>
<p>Second, you might be able to negotiate a “pre-termination notice period,” which means an agreed upon period of time BEFORE termination that lasts a day or more past your retirement vesting date. Under this scenario, you would remain a full-time employee in good standing until the vesting date, and then, as a former employee collect severance.</p>
<p>This second path is often referred to as “Negotiating a Bridge to Retirement,” and I have written a newsletter on that exact subject, entitled “12 Steps to Negotiating a Bridge to Retirement. ” To read it, just <a href="http://skloverworkingwisdom.com/blog/index.php/negotiating-bridge-retirement/">[Click Here]</a>. <br />
 <br />
Third, I suggest you may be best off by writing an email to Human Resources, telling them your concerns, and expressing the thought that this might even be motivated by a desire to deny you your retirement. You might even “cc” it to the CEO.  DO NOT offer to leave, with or without severance, but insist on staying on at least the four months. And make sure you are EXPLICIT that THIS IS NOT A RESIGNATION, but the opposite. Generally, steps like these help employees in your circumstances. There are no guarantees, but in my experience this is what “works.”</p>
<p>Hope this helps. Thanks for writing in. It would be great if you could write back in a month or two to let us know how you did. </p>
<p style="text-align: right;">           Best, Al Sklover</p>
<p>© 2010 Alan L. Sklover, All Rights Reserved.</p>
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		<title>“How can I get some needed relief from FMLA-retaliation?”</title>
		<link>http://skloverworkingwisdom.com/blog/index.php/%e2%80%9chow-can-i-get-some-needed-relief-from-fmla-retaliation%e2%80%9d/</link>
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		<pubDate>Tue, 31 Aug 2010 06:00:11 +0000</pubDate>
		<dc:creator>Alan L Sklover</dc:creator>
				<category><![CDATA[COBRA and FMLA]]></category>
		<category><![CDATA[Q & A]]></category>

		<guid isPermaLink="false">http://skloverworkingwisdom.com/blog/?p=5111</guid>
		<description><![CDATA[Question: Alan, I have breast cancer. I am presently out on an approved federal Family and Medical Leave Act (“FMLA”) leave of absence for the permitted 12 weeks. Before I went out on this FMLA leave of absence, I was always a top performer. For the past six weeks or so, my boss has done...<br /><a href="http://skloverworkingwisdom.com/blog/index.php/%e2%80%9chow-can-i-get-some-needed-relief-from-fmla-retaliation%e2%80%9d/">Read the rest of this blog post &#187;</a>]]></description>
			<content:encoded><![CDATA[<p><span style="text-decoration: underline;"><strong>Question:</strong></span> Alan, I have breast cancer. I am presently out on an approved federal Family and Medical Leave Act (“FMLA”) leave of absence for the permitted 12 weeks. Before I went out on this FMLA leave of absence, I was always a top performer.</p>
<p>For the past six weeks or so, my boss has done a series of things that have made me uncomfortable. As examples, he has threatened my job if I don’t return early, and told me that, despite the law, there is no guarantee I will have my job back. He was so mean, I cried.</p>
<p>Our company’s Human Resources department has a Leave of Absence desk; my boss actually got into a fight with them because of the way he has treated me. It has gotten so bad that the Vice President of Human Resources directed that I don’t speak with my boss at all, but only to her. I told the VP of Human Resources that I was frightened about how my boss would treat me, especially now that he knows I have complained about him. Since then, no one has called me back.</p>
<p>I’ve told Human Resources that I will not feel comfortable working with my boss when I return,  because of how he has treated me. He seems “protected” because he is with the company for 20 years, and knows a lot of senior managers. What can I do?</p>
<p style="text-align: right;">Kellie<br />
Ada, Oklahoma</p>
<p><span style="text-decoration: underline;"><strong>Answer:</strong></span> Kellie, first may I say that it is my prayer that your breast cancer will go into remission, and that you will soon regain your health completely.</p>
<p>As to you, your employer and your FMLA legal rights, I strongly suggest you file a FMLA Complaint about how you have been treated with the federal agency that is there to help taxpayers like you on matters of FMLA: the Wage and Hour Division of the United States Department of Labor. And, at the same time, I strongly suggest you send a copy of your FMLA Complaint to the President of the company you work for, and the Head of Human Resources at your company.</p>
<p>Your FMLA Complaint should lay out the facts as you have done for me, and even a bit more detailed, if possible. When it comes to such things it is better to give more information and detail than less. Do not be afraid to do so: not only is it your legal right, but it should only give you more protection from such retaliatory behavior as you have described.</p>
<p>The US Department of Labor Wage and Hour Division will investigate your complaint. While they are generally quite responsive, I suggest you mention your breast cancer, and ask that the investigation of your Complaint be expedited. Send your FMLA Complaint to both of these two places, by Federal Express, UPS Overnight Service, or U.S. Express Mail:</p>
<table>
<tbody>
<tr>
<td>U.S. Department of Labor                              <br />
Wage and Hour Division                                 <br />
FMLA Complaints                                              <br />
Attn: Glynda Smith, District Director       <br />
Old Post Office Building – Rm. 321             <br />
215 Dean A. McGee                                           <br />
Oklahoma City, OK 73102-3475               <br />
(405) 231-4158                                                   </td>
<td>U.S. Department of Labor<br />
Wage and Hour Division<br />
FMLA Complaints<br />
Ray Blanchard, Asst. District Director<br />
1645 South 101 East Avenue<br />
Suite 170<br />
Tulsa, OK 74128<br />
(918) 581-6303</td>
</tr>
</tbody>
</table>
<p>As noted above, send a copy to your employer’s President and Head of Human Resources.</p>
<p>Of course, you might also consider obtaining the legal advice of a qualified employment attorney in your area.</p>
<p>Kellie, I really do believe this is what would likely help you the most in your circumstances. While I am not licensed to practice law in Oklahoma, as to your federal FMLA rights, this is what I have seen help my clients the most. First, it will surely get the attention of your employer. Second, it may provide you with the help of the government, without cost. Most of all, I hope and expect it will reduce the anxiety and stress you are experiencing from this situation, which I am sure can only help your body gather the strength, stamina and serenity you need to overcome your breast cancer.</p>
<p>As noted above, I will say a prayer for you. I hope that others who read this blog will do so, as well. We are all in this together.</p>
<p>My sincerest Best to you.</p>
<p style="text-align: right;">Al Sklover</p>
<p>©  2010 Alan L. Sklover, All Rights Reserved.</p>
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		<title>Sklover’s Thought for the Work Week</title>
		<link>http://skloverworkingwisdom.com/blog/index.php/sklovers-thought-for-the-work-week-10/</link>
		<comments>http://skloverworkingwisdom.com/blog/index.php/sklovers-thought-for-the-work-week-10/#comments</comments>
		<pubDate>Mon, 30 Aug 2010 06:00:05 +0000</pubDate>
		<dc:creator>Alan L Sklover</dc:creator>
				<category><![CDATA[Thought for the Week]]></category>

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		<description><![CDATA[“You can add salt to soup.But once you do, you can’t take it out.” -Sylvia Sklover At work, when things get difficult, when events upset you, when people seem to deserve harsh response, take a deep breath and, if necessary, take a brief walk around the corner before responding. Once said, or once written, and...<br /><a href="http://skloverworkingwisdom.com/blog/index.php/sklovers-thought-for-the-work-week-10/">Read the rest of this blog post &#187;</a>]]></description>
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<p style="font-size: 180%; color: #9f0000;">“You can add salt to soup.But once you do, you can’t take it out.”</p>
<p><big style="color: #9f0000;">-Sylvia Sklover</big></p>
<p>At work, when things get difficult, when events upset you, when people seem to deserve harsh response, take a deep breath and, if necessary, take a brief walk around the corner before responding. Once said, or once written, and with an email, once transmitted, you can never take back those words, or that tone, or the damage they may do. It takes so long to build a relation, and a reputation, and so little to lose them, especially these days. Hold off on “the salt” until you are sure “the soup” really needs it.</p>
<p><span style="font-size: xx-small; font-family: Times New Roman;">© 2010 Alan L. Sklover. All Rights Reserved. Commercial Use Prohibited.</span><span style="font-size: medium;"> </span></p>
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