Sklover Working Wisdom

“I experienced workplace violence, left early, and was suspended for it. Were my rights violated?”

Alan Sklover — Thu, 29 Jul 2010 06:00:20 +0000

Question: I was assaulted at work by another employee. I went directly to the General Manager and told him what was happening. Then I went to my direct Supervisor to let him know that I was leaving early (there were two hours remaining in the workday) because I was shaking, and to defuse the situation.

As soon as I got home, I contacted the police, and filed a police report.

I ended up being suspended without pay for the following workday because they said I left my job. The other person involved wasn’t sent home that day, and wasn’t suspended like I was. My managers have told me that they don’t want me to involve Human Resources, but I insisted.

Now I am waiting for a meeting with Human Resources, but I feel my Civil Rights were violated because I did nothing wrong but leave to defuse the situation. What are my rights?

Cliff
Surprise, Arizona

Answer: Cliff, from what you have written, it is hard to believe you would be suspended without pay.

The only reason I can think of for your being suspended is that, although you wrote that you told the General Manager and your direct Supervisor you were leaving, you did not write that they had granted you their permission for you to do so. In fact, from what you have written, it sounds like the General Manager and your direct Supervisor did not, in fact, grant you permission to go home. That can be a very serious offense at work, no matter what the circumstances.

I am not saying what you did was not right under the circumstances. In fact, I think I might have done exactly the same thing you did, if I were in “your shoes.” However, “managers” must “manage” people. When “managing” people and groups of people, the number one issue, above all others, is “control.” I don’t mean this in a negative sense, but in a practical sense. Managers are responsible for maintaining “control” of the workplace, for several different reasons, often ones you and I might not think of.

• Perhaps the General Manager and your direct Supervisor had to, by company policy, immediately debrief you to find out exactly what happened to cause the incident, but you had already left the office. That could cause a problem.

• Perhaps the General Manager and your direct Supervisor had to, by state law, have you sign a statement prepared by them at the time of the incident, but you had already gone home. That could cause a problem.

• Perhaps the General Manager and your direct Supervisor had to, due to insurance requirements, ask whether you had seen any weapons, but you had already left work. That could cause a problem.

• Perhaps the General Manager and your direct Supervisor had to, because of federal Occupational Safety and Health Administration (“OSHA”) regulations, have a person of your gender examine you for any signs of physical injuries, but you had already left the premises. That could cause a problem.

• It’s just possible your assailant was not sent home, or suspended, because the General Manager and your direct Supervisor did not have a written, signed report from you, because you had already left work. Because you were no longer at your work premises, it is possible your violent assailant could not be fired, and therefore continues to pose a danger to others. That could be a real problem.

I’m sure, by now, you get my point: managers have things to worry about that you might not be aware of, and being an employee means agreeing to “let managers manage.” It’s Rule #1, or close to it.

You were smart to file a police report. You were smart to bring the matter to Human Resources; I hope you described the incident to Human Resources by way of email, because that would make a great permanent record. But leaving the workplace premises without prior permission – unless you really believed you were in real danger of imminent bodily harm, or critically needed to see a doctor – was not the best thing to do. You have many rights in the workplace, but they all depend first on your fulfilling your responsibilities to your employer, and it managers. And “letting managers manage” is one of them.

If you have an injury, you have a right under Arizona law to file a Workers’ Compensation claim for any medical costs and any lost income. You might even have a right to sue your assailant for any injuries. But your “rights” against your employer are slim to none, if you did not first observe that important “rule”: “Let managers manage.” If what happened to you happens again, consider staying put, insist on calling the police from your workplace, insist on being protected. But don’t leave without permission.

This may not be exactly what you wanted, or expected, to read. Nonetheless, I do hope it is valuable, helpful, and something you will keep in mind.

Thanks for writing in!! Hope you’ll tell others about our Blog.

Best, Al Sklover

“Can a wife resign her husband out of his job?”

Alan Sklover — Tue, 27 Jul 2010 06:00:58 +0000

Question: I have been accused of “tendering” my husband’s resignation from his job, even though he did not know anything about it.

Is that possible?

Shirley
Irwin, Idaho

Answer: Shirley, I must admit that this is a question I have never been asked before.

From my perspective as an employment attorney for over 25 years, and as one who deals with these things all the time, my simple answer would be “No.” Your husband is the one with the employment relation with his employer, not you. He can end it; you cannot.

A job is a very personal relation between employer and employee. Just like you can’t show up to do his work one day in his place, you do not have any legal right or authority to end that employment relation.

In rare circumstances, such as a husband being in a coma, or if a husband has lost his ability to speak, I suppose a wife could tender his resignation for him. But that doesn’t sound anything like what you are describing.

While I don’t know how you could have been viewed as having tendered your husband’s resignation, it’s probably more of a misunderstanding than anything else. If your husband wants to get his job back, I suggest he speak directly with his employer’s Human Resources staff, and explain that, well, sometimes spouses do things spouses should not do. I know; I have experience in marriage, as do most employers.

Hope this helps. Good luck.

Best, Al Sklover

Sklover’s Thought for the Work Week

Alan Sklover — Mon, 26 Jul 2010 06:00:41 +0000

“If you can talk, you can sing. If you can walk, you can dance.”

- African Proverb

Deep down, most people hate to admit: they can do better. Whatever may be holding you back from your potential “heights” at work, don’t let them. Whether it’s fear of failing, too many other things on your mind, a sense that it won’t be worth the extra effort, or anything else, if you don’t let it get in your way, it just can’t.

“If a firm was representing me in my case against my employer and was also doing work for my employer, is that a ‘conflict of interest’?”

Alan Sklover — Thu, 22 Jul 2010 06:00:08 +0000

Question: I took my employer to our local Labor Court. In my case I was represented by a firm that – I found out later – was also working for my employer. My case was dismissed in favor of my employer.

Was the firm that represented me in a “conflict of interest” in my case?

John
Seattle, Washington

Answer: John, what you describe is the very definition of a conflict of interest.

A conflict of interest exists when a person’s interests would benefit from taking an action, and also benefit from not taking that very same action. For example, if you work for a company that sells cleaning supplies, and your son sells brushes to your company, will you try your hardest to get the best price for the company, or to get the best price for your son? I’d imagine that you would feel, in your heart, “conflicted” about how much the company should pay for the brushes.

There is an old saying that illustrates conflicts of interest: “A man who has a watch always knows what time it is; a man who wears two watches is never sure.”

By the way, I’ve written an entire newsletter article on how to spot Conflicts of Interest, and what to do if you are affected by one. If you’d like to read it [click here.]

I strongly suggest you write one letter by email, FedEx or UPS, to three parties (1) the firm that represented you, (2) your former employer, and (3) the Labor Board, and advise them that you believe that you did not get a truly fair hearing because your representatives seem to have been conflicted by their doing work on “both sides.”

That is not an allegation of dishonesty, but rather an acknowledgment that it is not possible to do your best when you are in such a conflict of interest. I suggest you ask for a new Hearing to have your case re-examined.

By the way, if your representatives were licensed attorneys, you may have a claim against them for legal malpractice, or for a refund of anything you paid them, because attorneys are ethically responsible to avoid such conflicts.

Hope this helps.

Best, Al Sklover

“Is stating that I would not stay in a building on fire grounds for termination?”

Alan Sklover — Tue, 20 Jul 2010 14:19:01 +0000

Question: I have a grievance hearing in a few days because I was terminated for insubordination.

The claim that I was insubordinate came about because I made a statement that I would not stay in a building if it was on fire.

Do you think that is grounds for termination?

Carmen
Hartsville, South Carolina

Answer: Carmen, unless you are by profession a firefighter or other “first responder,” such as a police officer, you never “signed on” to risk your life for your job, and you should not lose it for trying to keep yourself alive.

While I do understand that employers may want to institute “fire emergency plans,” and want employees to follow them, I don’t believe that you should be fired for saying that you view staying in a building on fire to be unacceptably life-threatening. In fact, I believe you have an obligation to be honest with your employer about your intentions to leave a burning building, and your employer then has an obligation back to you to plan around your intentions, and the likely intentions of other employees to get as far away from the flames as possible, as quickly as possible.

Carmen, I live in New York. As you know, many people perished in the World Trade Center precisely because they heeded suggestions, and obeyed orders, to “Remain in the building.” I can tell you that most people I know – including me – will not stay in any building on fire, no matter what. I love my kids too much to make them fatherless. I will not lie to anyone about my intentions, either.

In fact, any CEO, President, Board Member or other senior executive who assures anyone that they, themselves, would risk their lives for their job is, in my humble opinion, foolish and full of baloney. You might consider asking some of them if they are willing to testify under oath that they will stay in a burning building.

I say stand up, speak up, and insist on your job back.

Best, Al Sklover

Sklover’s Thought for the Work Week

Alan Sklover — Mon, 19 Jul 2010 06:00:57 +0000

“It does not matter how slow you go, so long as you do not stop.”

- Confucius

At work, all sorts of delays, frustrations, and unexpected obstacles push you “off path,” and slow your progress. Don’t fret, don’t get flustered, and don’t lose focus. Simply keep your goal in mind, and keep yourself moving toward it. That is the way goals are achieved.

“How can I get my employer to honor the salary offer it made when I was hired?”

Alan Sklover — Wed, 14 Jul 2010 06:00:37 +0000

Question: When I was hired, I was told that my starting salary would be $60,000, and that it would be raised to $65,000 after 90 days of employment. That offer was confirmed to me by the company in an email.

However, my first pay stub indicated that I was paid at an annual rate of only $50,000. Twice now I have written to the owner of the company, asking why I haven’t been paid the right amount; both times he stopped by my office and told me he is looking into the “issue.”

Now, as a result, they are threatening to fire me. Do I have any options?

Claudio
Glen Cove, New York

Answer: Claudio, you are surely in between “a rock and a hard place.” That being said, there is probably a way out.

On the one hand, you do have legal rights that are enforceable: your employer has made you a promise – in a “writing” – of a certain amount of money for your services, and is not paying you that amount. For this reason, you have a fine legal claim for unpaid wages. And you have also written to the company “making a claim” for those unpaid wages. You have a right to both (a) file a claim for unpaid wages with the New York State Department of Labor, which will follow up on this for you, or (b) take your employer to Court (probably Small Claims Court) where you do not have to hire an attorney, but you can represent yourself.

[By the way, in New York State, employers who intentionally do not pay wages they promised to pay are also liable for a potential penalty of 25% of the unpaid amount, plus legal fees, if any.]

On the other hand, you may likely lose your job if you either file a Labor Department claim, or start a lawsuit.

Might I suggest you (a) continue in your job, to continue income and benefits, (b) search for a new job, and (c) if you leave for any reason, or are fired, you should:

(i) file for unemployment benefits, and show them you were fired for simply standing up for yourself;

(ii) write a letter to the company demanding what is due you; and, if that does not work,

(iii) then make a claim (either in Small Claims Court or with the New York State Department of Labor) for unpaid wages, 25% penalty, and if applicable, attorneys fees.

We do have available for purchase a Model Letter entitled “Demand for Unpaid Employment Compensation,” on the “Model Letters” section of our blogsite. If you are interested in using such a Model Letter [click here.]

While you are in an unfortunate position, you are fortunate to have promises to you in “writing,” and your “protest” in writing, as well. When the time becomes right, you should be in a strong position to stand up for what you deserve.

Hope that helps.

Best, Al Sklover

Sklover’s Thought for the Work Week

Alan Sklover — Mon, 12 Jul 2010 06:00:29 +0000

“The caterpillar does all the work, but the butterfly gets all the publicity.”

- George Carlin

At work, some people work so hard, no one notices them. On the other hand, there are others who don’t know the meaning of work, but sure know how to self-promote. Workers of the World, Rise Up and Promote Your Value! When it comes to your value, your dedication, your loyalty, and contribution, you need to make sure the “Decision-Makers” at work know about it. “Advertise, Publicize, and if necessary Pull-the-wool-over-their eyes.” Find ways to make your value known, and make it a regular practice. The best beverages, the best cars, the best hotels, the best clothing stores . . . they all advertise. Why don’t you? You really must.

“Does leaving an employer, and then returning, relieve me from a non-compete agreement I signed the first time I was hired?”

Alan Sklover — Fri, 09 Jul 2010 06:00:25 +0000

Question: I worked for a company for about a year. When I started, I signed a non-competition agreement that had a three-year term of non-competition.

Then I quit. As proof that I quit, I could even show that the employer cancelled my health insurance for that three weeks.

Three weeks later, I was rehired, but this time I did not sign a new non-compete agreement.

That was four years ago. I just got fired and got a letter from the company attorney telling me that the non-competition agreement was somehow in full force and effect.

Is the “old” non-compete enforceable? Even if they go back to the time I quit, the three years was up. How can they say the non-compete is still in effect if I didn’t sign a new one when I came back to work?

Erika
Elkhart, Indiana

Answer: Erika, you present a very interesting question, one that I don’t think I have ever heard before. Because your question concerns the meaning and effect of an agreement, the first thing a Court would do is to focus on the exact words used in the agreement. So that’s where we must start: with the words of the non-compete (also called a non-competition agreement.)

1. I have never seen a non-competition agreement provide that it is effective only the “first time I leave” the company, or, for that matter, “each time I leave the company,” either. Usually the words of a non-compete agreement read this way, or quite close to it: “If I should leave the company, either voluntarily or involuntarily, I promise not to go to work for a competitor for a period of one year (or two years, etc.). The words do not say “first time I leave,” or “each time I leave.” They only refer to “if I should leave.” Thus, if your non-compete agreement is like most, it is just not clear if you are restricted on this, your “second” time leaving. There probably is an ambiguity in the wording of the agreement.

2. A general rule of interpreting agreements is this: if it is unclear, it is interpreted against the interests of the drafter. Does your non-compete agreement cover each and every time you leave the company? If it is not clear, the law would usually interpret it against the view of your company, that is, in your favor.

3. Three years is so long to limit someone’s freedom to work that, these days, most courts would find your agreement void, and of no effect, because it is just unreasonable. More and more, judges are reluctant to keep people out of work without a very, very good reason. My experience is that no judge would ever seek to restrict you for that period of time. Indeed, most judges would likely find your agreement totally unenforceable, due to its unreasonable duration.

My suggestion is that you put these thoughts into a letter to the company’s CEO or President, and ask him or her for a written letter or email that they will not seek to interfere with your making a living, because (a) the agreement is unclear, at best, regarding its effect on a person leaving for the second time, (b) the company attorneys wrote the agreement, and they are the ones who are to blame for its ambiguity, and (c) it is so long so as to likely be simply found unenforceable if it ever got to Court. (You might even send him or her a copy of this Q & A.) Your letter must be sent in a verifiable manner, such as by Email, Certified Mail, Return Receipt Requested, or by FedEx or UPS.

Most importantly, I would tell the CEO or President that, if the company hurts you, or your family, or your career, you intend to ask a jury to find the company – and the CEO or President – fully liable for the damages they cause.

That may do the trick. Otherwise, you might just need to hire an employment attorney to try to get yourself out of this predicament.

Though my view of your dilemma is likely not as clear as you might have liked, I hope this is helpful to you. Good luck.

Thanks for writing in. Hope you come back to our blog again and again. Consider subscribing – it’s free!!

Best, Al Sklover

“How do I pick a good employment attorney to represent me?”

Alan Sklover — Thu, 08 Jul 2010 06:00:09 +0000

Question: I have filed a claim of discrimination with the federal Equal Employment Opportunity Commission (“EEOC”). Now I feel I need to hire an attorney who will see this through to filing a lawsuit if necessary. I am at a loss trying to determine what to look for in choosing a discrimination employment lawyer or law firm in my area that will put forth 100% in defending my rights.

My case has merit, but if it is not presented appropriately the company will get away with shameless discrimination again. What remedy am I looking for . . . what’s most important to me at this point is a monetary judgment in my favor.

How do I choose an attorney or firm that will help me make this happen? Small firm versus large firm? Individual attorney? Out of pocket versus contingency?

For the past several weeks I have lived on your website. It has been a source of encouragement and support during this stressful time. I am in the midst of life changing events and decisions. I want to do this right. Thank you, in advance.

Norma
Lenexa, Kansas

Answer: Dear Norma: First, thank you for your “return words of encouragement and support.” My purpose in creating, maintaining and developing this blogsite is to give people hope and help in standing up for what is right in their work. I’m glad to hear from you that it is working as I hope it does.

The subject of your letter is a very important one, and your questions are really good ones. In fact, the subject of your letter is one I have been planning on writing about in a future newsletter. In addition, I think about your question when hiring attorneys to work for me at my firm. In my upcoming monthly newsletter and video, these topics will be treated in greater depth.

Here, though, is a summary of my thoughts on what you should look for:

1. A Belief in Your Case: No matter how good an attorney may be, if he or she does not “believe” in a case, his or her work on it will be lackluster, unimaginative and passionless. Share the facts of what happened, and share, too, your goals. Listen to the attorney’s response, and watch his or her eyes.

2. Experience in Handling Issues/Cases Like Yours: There is simply no substitute for experience when it comes to matters that require considerable judgment, which is something lawsuits do require. Look for an attorney who has already learned from his or her mistakes, and successes, while working for others in your circumstances.

3. A Caring, Concerned Quality: Though this may sound trite, it’s important to find an attorney who cares, first and foremost, about you. That’s not an easy person to find. Many aspects of litigation require that decisions be made that affect not only your case, but your life, your reputation, your family, your career, your finances and maybe even your health.

4. An Aggressive / Creative Streak: Thinking – and acting – “outside the box” is a quality I seek when hiring attorneys to work for me. Or, at least, an ability and willingness to do so.

5. I suggest “Part Hourly, Part Contingency”: I believe that an arrangement with an attorney is best structured as part hourly and part contingency. That is because such an arrangement aligns the interests of both. Said different, this places the attorney and the client “in the same boat,” as the longer the case goes on, the more “resources” (your money and the attorney’s time) it will require of each. At the same time it makes attorney and client both happy to reach a good settlement.

6. Firm Size Does Not Matter: Over the years I have seen solo attorneys and small firms do just as good work, and quite often better work, than their larger counterparts. Though some people think large firms have better lawyers, I have come to doubt that very much. It is the individual, and the individual’s character, skills and experience that matter to me.

7. Local Counsel Usually Helps: I do think that attorneys and law firms that reside where you reside do have an advantage in that they tend to have helpful relations in and related to the local legal system that can be of advantage to you.

8. I Prefer “Employee-Only” Advocates: If I was seeking an attorney to handle an “adversarial” matter like yours is, I would prefer to hire an attorney who only represents employees, and does not assist employers. That is the way my firm operates, and many of our clients tell us that this was an important reason they chose to use our services.

Of course, no one or two single factors should guide your decision; all facts and factors should be considered. Likewise, this list is not exhaustive, but only a summary of my thoughts.

In the “Model Letters, Memos and Agreements” section of our blogsite, we offer a Model Letter Seeking Information from a Prospective Attorney Prior to Retention. If interested in obtaining this Model Letter [click here.]

I sure hope this has been helpful to you. My very best in your quest.

Thanks for writing in, and I am glad you enjoy the blog. Please consider subscribing to receive our posts – it’s free. If this was helpful, please tell a friend.

Best, Al Sklover