Sadly I am quite good at what I do, but I find myself out of money, out of ways to spin my reason for such a large employment gap. I had a stint in a retail job as a holiday seasonal employee, but even since then finding a job in retail has been difficult. The issue there seems to be my educational background and work history and “not needing the job as much as someone lesser educated or without having had a career like you did.”

What on earth am I to do? I am desperate to the point that I started lying on retail job applications (I stopped as I did not feel right about doing this – and realized it is cause for termination if I am found out.)

My dilemma is: Will I ever get hired again, at the level I should, or has the gap finished my career as I have another 2 year gap during the “dot com” bust?

Am I all washed up?

Unemployed, Disheartened and Underemployed
Orlando, Florida

Answer: Dear U, D and U: My heart goes out to you. Your predicament is palpable, and your sense of being overwhelmed is understandable. Permit me to offer a few thoughts that I hope will help:         

1. In difficult times, you need to focus on your core values. When it seems that winds are blowing you over, rain threatens to drown you, and lightning and thunder roar, the first question is: Where is safety? In the storms that threaten you, safety is to be found in your core values. What is most important to you . . . Is it Career? Family? Prestige? Health? Financial security? From an introspective review of your core values, you will inevitably begin to (a) see what is most important to you, and (b) find a path to or toward it. It may sound like pithy nonsense, but it is as simple as “Where do I want to go?” and “Then, what is the most direct way to get there?” I don’t pass judgment on other peoples’ core values. But I am uncomfortable with those who don’t take the time to decide, in truth, what it is that they want.

2. In the meantime, of course, you need to survive financially. I must admit that, while it is very easy for me to “preach” to you from afar, I do want you to know that I have been, in my more difficult years, what most people would call “near the bottom.” In those times I just picked a goal, and said to myself, “Come heck or high water, that is where I am headed.” Financially, times were so tight for me that when I look back, I shudder. But I made a plan, and I generally followed that plan – with plenty of detours, I must admit –  the harder times are now behind me.

In the meantime, though, I did have to put up with the discomfort and indignity of an excruciatingly frugal life, near monastic, in which coworkers made fun of my clothes, and a pocketful of coins – not bills – was my kind of financial security. Taking things day by day, dollar by dollar, at least in the meantime, is the way to get yourself through this difficult financial time, and back on financial footing. Don’t fret the discomfort and indignity: they will not last forever. 

3. Remember that all work is honorable, if done with dignity. Start wherever you can. Never, ever be ashamed of your job. Whether it is working as a companion to the infirm, a clerk in a dry cleaner, or as a cleaning person, the work you do is honorable if you do it with dignity. It is no crime, and it is no embarrassment, to be in difficult times. The crime and the embarrassment are in not taking on a task available to you that can help you survive financially. Part-time, live-in, temporary, or whatever, if a job puts food on the table, and keeps the lights turned on, it is entirely worthwhile. Self-reliance yields self-respect, no matter what may be the work you do.

4. In your circumstances, I don’t think it is truly wrong to “deflate” your resume or job history. As I have written before, while I almost always insist on “resume honesty,” in certain circumstances I believe “resume deflation” is a victimless offense, and so I condone it in certain circumstances. Your circumstances, in my view, qualify you as an acceptable candidate for “resume deflation” to keep you afloat. As to gaps in your employment history, I don’t see a downside to being frank and open about the difficulties you – and your employers – have had in this treacherous period in our economic lives. Don’t portray self-pity or fear of the truth: instead, project pride for being an amazing survivor.  

5. Forgive my optimism, but I am certain you will once again be hired for the job you deserve, if only you truly dedicate yourself to that goal. The more experience I have with working people, and it’s now over 30 years, the surer I become each day that (a) clarity as to core values, coupled with (b) determination and (c) dignity, will without question lead to (d) what you deserve. I have seen it 1,000 times. You really cannot keep a good man or woman down who knows what they want, who demands of themselves that they will – one day – get it, and who don’t see worn shoes or dirtied hands as a source of shame, but as a reason for pride.

6. And, too, you need to ensure you survive spiritually. While the body needs food, the soul needs its own source of nourishment. If you pray, consider praying for nothing but what I call “The Three S’s.” It is my custom to pray twice each day for just three things: (i) Strength, at least enough to contend with the demands of each day, (ii) Stamina, the continuing strength to maintain my efforts from one day to the next, and the next day after that, too, and (iii) Serenity, that inner calm that comes only from knowing I have “done my best to do my best” in everything I have done. It’s funny, but asking for only these three things – and not a winning lottery ticket – always ends with my prayers being answered.

If you do not pray, consider that special spirit within each of us that just refuses to give up, and is responsible for so many incredible feats of caring, courage and compassion. It is that special spirit that will keep you going forward, out of the storm and into the sun, that is within you, at all times. That special spirit is surely waiting for you, so simply tap into it and live by it. It goes by lots of names; no matter what you call it, it is there for you.      

Trust me, please: you are not “washed up.” Perhaps weary, and surely a little “weathered,” but your best days are absolutely ahead of you, so long as you are as convinced of that as I am.  

And, too, when you have pursued this path, and followed your goal, through thick and thin, you will surely look back with great pride. Freud said it pretty well: “In later years, when you look back, the times of greatest struggle will surely be remembered as the sweetest.”      

Very, Very Best,
Al Sklover

P.S: Got a friend facing Job Loss, Severance, Resignation, Bully Boss, or Performance Improvement Plan? Our Model Letters are a “Helping Hand Gift for a Friend in Need.” Just [click here] to view our list.

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

“God help the sheep when the wolf is the judge.”

- Danish Proverb

At work, never expect Human Resources or anyone else who works for management to be the judge of whether you have been treated fairly by management. Make an email record, insist on an independent review, perhaps bring your concern to the Board of Directors. But whatever you do, just never expect the wolf to refrain from eating the sheep. That would simply be unnatural.

© 2012 Alan L. Sklover. All Rights Reserved

“God could not be everywhere and
therefore he invented mothers.”

Jewish Saying

To every mother, grandmother, and great grand-mother out there, THANKS. Today is Your Day. It’s even named after you. In case anyone hasn’t said it to you yet, THANKS for all you do, all you’ve done, and for the zillions of things you will do tomorrow and the day after that, too . . .

© 2012 Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

The problem is, my former employer was my former wife and her family. When contacted they are refusing to acknowledge my employment, and even go so far as to tell people I was dishonest about my job title and responsibilities.

How do I go about being up front with this problem when looking for work? Do I simply eliminate it from my resume and attempt to start anew?

Jim
Phoenix, Arizona

Answer: Dear Jim: Your predicament is a tough one. I see it as a choice of two paths, and a sort of “damned if you do, and damned if you don’t.” I think that, overall, one of those two paths is preferable.

1. When preparing a resume, I strongly suggest honesty in all respects, with very few exceptions. I believe that “resume dishonesty” can be one of the most foolish things a person can do, because dishonest additions, mischaracterizations and omissions can hurt you for the rest of your life. Just last week, the CEO of Yahoo was in danger of losing his job due to “resume dishonesty” that took place years ago. Resume dishonesty is almost always viewed as “cause” for firing, no matter when it took place, and no matter how minor. All that said, there are times that I believe some degree of “resume dishonesty” is the wisest thing to do, given the circumstances and the options.

2. Personal matters, such as this one, are one of those exceptions. When family, personal or intimate relations are involved in the end of an employment relation, I often suggest a touch of “resume omission.” By that, I mean leaving out details that might be considered “TMI” or “too much information” by some. And sometimes I even suggest omitting the entire relation on a resume, if possible. Other examples of what I view to be permissible “resume omission” are the (i) precise reasons for resignations if the real reason is required to be kept confidential by confidentiality agreement, and (ii) precise reason for employment gaps that happened in order to recuperate from an illness if the nature of the illness may be embarrassing or quite personal. No one wants to hear anyone’s issues, problems or complaints about former spouses, former employers, or former spouses who were former employers, or their issues, problems or complaints about you. Sadly, many people say to themselves “It always takes two to tango,” even if one “side” of a problem is, in fact, entirely right and one “side” of that problem is entirely wrong.

3. I view “deflating” your resume – as opposed to “inflating” it – to be far less objectionable, and sometimes not objectionable at all. To my mind, leaving something off a resume is less objectionable than adding something to a resume that is not correct. I fully acknowledge that others see no difference between “resume inflation” and resume “deflation,” but I would disagree. “Resume inflation” to me connotes the word “dishonest” while “resume deflation” is closer to the word “discrete.” If, for example, you told a prospective employer you were a high school graduate, and you were really a high school graduate and also a college graduate, did you really “pull the wool over the eyes” of that prospective employer? I don’t think so. However, if you claimed to have a college degree and did not in fact have a college degree, I would find that to be clear dishonesty.

4. And, being that you have been in school, dropping your work experience during school is a far easier task. From what you have written, it seems to be the case that the work experience you are considering dropping from your resume took place while you were a student. Thus, if you “drop” it from your resume, you will not have to explain a resume gap. The time in question will be covered by the time you were in school, and studying.

5. It’s just possible that “deflating” your resume may help you in another way, too. I do acknowledge that you may be put at an unfair disadvantage in not being able to put down your relevant experience on your resume. It is a loss; I don’t think it will materially affect your career prospects. In fact, if you’ve ever heard the suggestion “Under-promise and Over-deliver,” you will know that your future employers will be quite surprised – and pleased – that a person with limited experience in your field does such great work. In this way, your inability to put your relevant work experience on your resume may actually end up being a “blessing in disguise.”

6. At the same time, you might consider being entirely “up front” about your experience, and your circumstances, but you will then be asking a prospective employer to take a risk most do not want to take. With all of this in mind, you might also consider the other “path,” that is, complete honesty as to what happened and your present circumstances. However, if you do so, you will be putting your prospective employer in a position to say to himself or herself, “Do I hire a dishonest person?” Gosh, not many people answer that question in the affirmative. It is up front, but I think it is self-defeating, too, and in this circumstance, I do not suggest it.

Jim, the fact that you are approaching this with your “mind wide open,” and considering the alternatives, is a great sign for your success in the future. So much of what we experience each day requires these kinds of analyses, and often in the spur of the moment. I would respect you no matter which “path” you may choose, but I want you to know that I would not at all disrespect you for “resume deflation” if that is the path you end up traveling.

Really good question; I hope the answer is helpful. Thanks for writing in. Please consider mentioning our blogsite to your friends and colleagues

My Very Best,
Al Sklover

P.S.: Don’t forget: we offer Model Letters, Checklists and Form Agreements for almost every workplace navigating and negotiating need you may have. Just [click here.]

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

A friend of mine was treated this way also after she filed a complaint of harassment. I have proof of what was said to me about my work performance “going to be monitored.” Will this be enough to prove that what happened to me was retaliation?

M
Scotch Plains, New Jersey

Answer: Dear M: What happened to you sure sounds like retaliation. However, “sounds like” is not enough. More is required to  establish that retaliation took place. Here are my thoughts:        

1. To “prove” that retaliation took place, you need to establish that, in what happened to you, there can be found the three necessary elements of retaliation. To establish any legal claim, there are certain things that need to be proven. They are what lawyers and judges call “the elements” of the violation. To prove retaliation took place, the first thing you need to prove is that you engaged in an activity that is “protected” by law. In your case, that is easily proven, as your filing a claim with the EEOC is such a “protected” activity. The second thing that you need to establish for a retaliation claim is that you suffered a “negative employment action.” In your case, that is easily proven, as you were both demoted and fired, both of which are “negative employment actions.” The third element that needs to be proven is called “causal connection.”    

2. Of the three things you need to prove, the hardest one to prove is “causal connection.” “Causal connection” means that (a) your filing a claim of discrimination with the EEOC was the thing that “caused” (b) your demotion and firing. Of the three elements of retaliation that must be proven, this is the hardest one of the three, as it is “in the heart” of the employer. However, we can “prove” what was “in the heart of the employer” by a variety of facts, events and circumstances.  

3. Here are ten common things that are often used to lead to a conclusion that a “causal connection” was present that tied together (a) a discrimination claim and (b) a “negative employment action”: (1) closeness in time between the “protected activity” and the “negative employment action”; (2) if it was the same people who you complained about who were the ones who demoted and fired you; (3) your employer giving a false or incredible reason for your demotion or firing; (4) if you were demoted or fired for things that other people have done and have not been demoted or fired, that is, different treatment; (5) if your work performance or conduct was given scrutiny greater than your colleagues’ work performance or conduct was given; (6) if you were demoted or fired in violation of existing company policies or procedures; (7)  if efforts were made to confuse, obfuscate or cover up what really took place; (8) if one or more people involved in your demotion or firing admitted their motives to you or others; (9) if you were demoted or fired for mere trivial reasons; and (10) if it can be shown your employer has had a history of illegal retaliation. There are many, many others.

Note that these things do not “prove” retaliation, but they are strong indicators of retaliation, and when you can show that a few of them have taken place in your facts and circumstances, it is very convincing to others that retaliation was, in fact, “in your employer’s heart.” That is as close to “proving” as you can get, without an outright admission by your employer, which is as rare as a hen’s tooth.    

4. If and when you do establish a “basic” case (lawyers call it a “prima facie” case) of retaliation, then the employer might be able to defend itself if it can prove “good business reason.” For example, you might present a very compelling case of illegal retaliation, only to have your employer come up with a very good reason for, let’s say, your firing: it believes you stole money from a cash register. If that was true, and could be proven to be true, or likely so, then any claim you might have of illegal retaliation would surely and swiftly go “down the drain.” Sometimes, unfortunately, both “sides” have pretty convincing sets of facts, events and circumstances, and it can be hard to know who to believe.  

5. If you think you have even a few reasons to believe retaliation took place, I strongly suggest you file a second complaint with the EEOC and/or with the state discrimination agency in the state you worked, this one for retaliation, which is a more serious violation of law than the initial discrimination. In my experience, no “case” is perfect; each has its imperfections, its doubts, its weak points. If you believe that there is any real chance of convincing, say, your next door neighbor that what happened to you was the result of illegal retaliation, then I suggest you file a new complaint with the EEOC and/or with the state discrimination agency in the state you worked, of illegal retaliation. First, when the matter is investigated, more information may come out that might help prove your case. Second, many employers simply settle such matters when they see employees are serious about getting justice. Third, many people – perhaps most – suspect most employers of engaging in illegal retaliation. In fact, many jury members will admit that “employers are probably guilty” even before hearing a case, based on their own experiences.

Retaliation for exercising your legal rights is an awful thing, because what good are legal rights if people are afraid to exercise them? It is my hope that you will consider very seriously filing a retaliation claim, and that you will persevere in following it up.                                                                                                      

 My Very Best,
Al Sklover

P.S.: When you need Domain Name Registration, Web Design or Internet Hosting, please use our Display Ad for GoDADDY.com. Their commissions support our blog.  

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

Recently a vendor of ours had a job opening which I applied for (after hours) and got. For the last 5 weeks I have been working both my regular job as well as this new job with the vendor on my days off. This past week I quit my first job entirely so that I can work for the vendor full time. Now my previous boss is contacting (and screaming at!) my new boss, telling him that he stole me away, that I am not a loyal employee, that he should fire me etc. He is also sending me insulting emails, saying that my new job will never last, that I made a huge mistake, that I’ll be crawling back to him etc. A real pleasant man, as you can tell.

My question is what can I do about this. Can/should I send him a cease and desist? How can I keep him from harassing me and my new employer? If my new employer takes heed and drops me, or fires me because he doesn’t want to deal with the drama of the old boss, can I sue the old boss for libel? My goal here is to keep the new job and silence the old boss. However, if I lose the job or he continues to cause me harm, something else will have to be done. Please help!! Thanks.

Matt
Newport Beach, California

Answer: Dear Matt: Though what is happening to you is extreme in its nature and intensity, I must admit that I have seen poor former-employer behavior such as this many times. In the law we refer to it as “tortious interference with prospective business relations” or similar words. Here are my thoughts in response to your questions:   

1. In almost all states, an “outsider” who interferes with another person’s business relations – including employment relations – can be sued for any resulting damages. The area of law that deals with injuries by one person to another is called “tort law.” The most familiar kinds of tort law are personal injuries, car accident and medical malpractice. Some tort injuries are caused by negligence – such as careless driving – and some tort injuries are caused by intentional conduct – such as a punch in the nose.

The law in almost all states recognizes and will permit a lawsuit for injuries to one’s business relations if the person who caused the injury had no involvement in the business relation, but only sought to interfere with it. We call that either “tortious interference with business relations” or “tortious interference with contractual relations” if the relation has a contract as part of it.

2. In most states, including yours, there need to be five things present (lawyers call them “elements”) in order to successfully sue someone for tortious interference. The five necessary elements of a successful claim of tortious interference: (1) an economic or financial relation of the plaintiff (the person suing); (2) knowledge by the defendant (the person being sued) of that relationship; (3) an intentional act by the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) damages to the plaintiff (person suing) caused by the disruption of the relationship.

While the law varies a bit from state to state, these five elements are quite common.

3. By all means, you should send your former employer a “Cease and Desist” letter.” There are four important reasons to do so: (a) first, it just might bring your crazy ex-employer to his senses; (b) second, to make a record of what he is doing and that you object to what he is doing; (c) third, to let him know that he will be held accountable for any damages he may cause to your new employment relation; and (d) fourth, to serve as persuasive proof, just in case you do end up suing your former employer, of the fact that he knew he was damaging you, and went ahead anyway.

We offer a Model “Cease and Desist Letter” to Disruptive Former Employers, just like yours, on the Model Letters section of our blog. To obtain a copy, just [click here.]

4. Sending a Cease and Desist Letter might also show your new employer that you attend to problems in a professional, direct and honest way. A new employment relation, like any new relation, is a delicate flower. It will bloom if you nurture it, and protect it from harsh elements. Many people think that “It always takes two to tango,” until, that is, they are mugged. This can help show your new employer that you are not at all a cause of this crazy behavior to which the two of you are being subjected. 

Matt, if you should decide to hire an attorney to assist you, you can obtain a list of at least five experienced employment attorneys in the Los Angeles area. To obtain a list, just [click here.]

Thanks for writing in, Matt. I sure hope you get away from that crazy ex-boss of yours.   

Best,
Al Sklover

P.S.: Our Model Letters help people stand up for themselves at work. For a friend facing Job Loss, Severance, Resignation, Bully Boss, or Performance Improvement Plan, they are a “Helping Hand Gift for a Friend in Need.” Just [click here.] 

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

“There will come a time when you believe everything is finished. That will be the beginning.”

- Louis L’Amour

Did someone say “job loss?” Or might someone have uttered “divorce?” Or perhaps it was “graduation” that was whispered. At work, as in all aspects of our lives, we approach, enter and pass through transitions. For each “future” you must have a “former.” And to be reborn a part of you must inevitably pass away. It is not a problem, but a vital process, a sure sign you are alive. Don’t fear the “ends,” but cherish them as preludes to the “beginnings.”

© 2012 Alan L. Sklover. All Rights Reserved

-  Unknown

ACTUAL “CASE HISTORY”: Ira was two years out of law school, but still unable to land his first full-time law job with a law firm. Over that time he had registered with a temporary help agency that specialized in part-time lawyers, and through that temp agency Ira had taken on some short-term assignments to help out law firms for specific cases. When the case was over, his job was over, too.

Some six months before coming to our firm for a consultation, through his temp agency Ira had been hired by a large law firm to work on a large case that was expected to last for two to three years. His job was to review documents and summarize them for the trial team. He worked at the law firm’s offices, was given a small office to work in, and expected to be there Monday to Friday, 9:00 am to 6:00 pm each day. Some weekends Ira was required to work, as well, especially if a deposition had been scheduled and the trial attorneys needed documents reviewed for it.

Unlike the law firm’s other attorneys, Ira received no benefits, no paid vacations, no paid holidays, no sick days and no 401k. It wasn’t a “real law job,” but it was enough to keep Ira afloat.

Ira didn’t see any difference between what he did and what the law firm’s associate attorneys did, and wondered why he was considered an “independent contractor,” and they were considered “employees,” and why he was not entitled to all of the benefits they were.

Ira had good reason to wonder, and much to gain by asking questions.  

LESSON TO LEARN: Our lives are full of different relationships, and often they can be unclear and confusing. Your doctor performs services for you, and you pay your doctor for those services. Does that make your doctor your employee? Why or why not? Can an employer use your services, and pay you for them, and still say you are not “employed?” Why or why not? If a partner in a company performs services for that company, and the company goes out of business, is the partner entitled to Unemployment Benefits? Why or why not? In each of these instances, the correct answer to the question is derived from the correct view of the underlying relation.

Despite frequent confusion and lack of clarity, we put a variety of different labels on people who (i) perform services and (ii) get paid. These labels include “employee,” “partner,” “independent contractor,” “vendor” and the like. Though each label has legal and financial implications, we often interchange them, sometimes to our benefit and sometimes to our detriment. As with everything else in life and at work, knowing what you are doing is most important.

The two “working relationship labels” that are most often confusing to people – and that get more people in “trouble” – are “employee” and “independent contractor.” Though there is no exact “bright line” test that differentiates the two, our analytical focus is always on one word: “control.”

a. What is an employee? An employee is under the “control” of his or her employer. The employer almost always (i) tells the employee what days and hours to work, (ii) tells the employee where he or she should work, (iii) tells the employee what work to do, (iv) tells the employee who will supervise his or her work, (v) tells the employee how much money he or she will be paid, (vi) tells the employee when he or she will get paid, and (vii) tells the employee how to do his or her work. That list of “control factors” is not exhaustive: in general, the employer “controls” all aspects of the employee’s work.

Also, an employee is generally provided by the employer the tools, equipment and supplies necessary to accomplish a task, whereas an independent contractor generally provides his or her own. In addition, the longer a working relation lasts, the more it is viewed as an employment relation.  

b. What is an independent contractor? An independent contractor is just what the title says: one who is “independent” of the employer’s total control, and “one who makes a contract” of sorts regarding the provision and payment for his or her services. Do you or does your plumber decide when he or she will perform services for you? Of course, the plumber does. Do you or your plumber decide how much the plumber gets paid? As a general rule, the plumber sets his or her own hourly rate. Do you provide your plumber with paid sick days, vacation or holidays? No. Do you supervise the plumber’s work? No. Overall, do you control your plumber? Hardly. For these several reasons, while your plumber provides services and you pay for them, there is no employment relation, but an independent contractor relation, instead.

Though there are many other factors we look for to determine whether someone is an independent contractor or an employee, “control” is the overriding issue.

The distinction between employee and independent contractor can be a blurry one, and it should not be surprising that, after reviewing all of the factors, one court might find that employment might exist, while another court might find that an independent contractor relation might exist. Nevertheless, a “best answer” almost always arises from a common sense review of the facts and circumstances of the parties’ interactions.

c. In a very few instances, the law dictates which working relation exists. For certain occupations, state and federal laws sometimes dictate which of the two working relations you can be. We call these “statutory employees” and “statutory non-employees.” For example, even if a person is clearly an independent contractor, if he or she does any one or more of the following, the U.S. Internal Revenue Service (“IRS”) requires employers to treat them as employees: (a) a driver who distributes beverages, meat, vegetables, fruit or bakery products, or who picks up and delivers dry cleaning, if his or her pay is fully or partly paid in commissions; (b) a full-time insurance sales agent primarily for one insurance company; and (c) an individual who works at home using materials supplied by the company and must be returned to you when not needed, if the company furnishes specific requirements for the use of the materials. These people are designated by the law as “statutory non-employees”: licensed real estate agents, direct salespeople, and certain home companions, provided each has a written agreement stating so.   

d. What difference does it make? The law requires that employers obey many laws regarding how they treat employees, which don’t apply to independent contractors. As examples, (a) employers must contribute about 7% over and above an employee’s income to the employee’s Social Security retirement fund, but are not required to do so for independent contractors; (b) employees must be protected by workers’ compensation insurance, in case they get hurt on the job; independent contractors have no such protection; (c) if an employee is not paid his or her earned wages, state labor departments of most states will assist them in their collection efforts; independent contractors are “on their own.” Employers are also required to make contributions for employees’ federal Medicare and state-required minimum disability coverage.

While many employers provide their employees with paid sick days, paid vacation, contributions to health care, and paid holidays, generally independent contractors do not get any such benefits.

On the other hand, independent contractors have certain advantages that employees do not. As examples, (a) they can charge whatever fees they can negotiate, (b) they can determine their own work schedules, (c) taxes are not withheld from their paychecks; they arrange for their own tax payments, (d) they can deduct from their income taxes their work-related expenses, and (e) they can have multiple “clients” at the same time. As I frequently say, “Being your own boss is either the best thing in the world, or the worst thing in the world, depending on who you are.”

e. Many laws protect employees, but not independent contractors. One important difference is that the federal and state discrimination laws protect employees, but they do not protect independent contractors. So, for example, it is entirely legal to decide that you want a doctor of a certain race, you don’t want a lawyer of a certain gender, or you want a plumber of a certain religion. “Discrimination” in the choice of which independent contractor to hire is not prohibited by the law, but is entirely legal. As another example, the Family Medical Leave Act (“FMLA”) provides employees with a right to time off to take care of a medical problem, but does  not provide these same protections to independent contractors. 

f. Many employers try to call people independent contractors in order to save money. The most common scenario seen by employment lawyers and Courts is for employers to try to characterize true employees as independent contractors in order to save money on such things as (a) employee benefits, such as vacation, sick days and health insurance; and (b) legally required payments, such as unemployment, Social Security contributions, and workers’ compensation coverage.     

g. The most important lesson is this: Once you know the differences between being an employee and being an independent contractor, you can (i) negotiate to minimize those differences to you, and/or (ii) file a complaint to get proper treatment. Though few understand this important lesson, it is the essential lesson to learn: (a) you need to know the differences between being an employee, on the one hand, and being an independent contractor, on the other hand, and (b) once you understand the differences, most – but not all – of those differences are negotiable.  

WHAT YOU CAN DO: Understand the difference between the two working relations, and understand, too, that you can negotiate and navigate the best of both relations. Here are the five basics you need to keep in mind:  

1. The first difference to resolve is that employees get common employment benefits: Employee benefits are given by employers to employees in order to attract and retain the best “human capital.” Though we have come to view many common employee benefits as entitlements – most notably paid sick time, paid vacation and employer-provided health insurance coverage – they are not required by law. Many employers try to give these benefits to their employees to attract and retain them, but deny them to others whose services they do not need in the longer term, or whose contributions they do not view as essential to running their companies. Independent contractors can – if they are deemed valuable enough – negotiate to either receive these benefits, or to be paid the money needed to purchase them.

2. The second difference to resolve: employees get contribution to retirement, unemployment and workers’ compensation: As a matter of law, employers must contribute to employees’ Social Security retirement funds in an amount approximating 7% of their income. Also, employers must give employees legally-required financial security in the form of unemployment insurance and workers’ compensation for injuries on the job. Independent contractors can – if they are deemed valuable – negotiate their own compensation level, and take the loss of these entitlements into account.

We offer two Model Independent Contractor Agreements which can be adapted for your use in efforts to negotiate to secure all possible compensation, benefits and freedoms. To obtain a copy of each, just [click here. ]   

3. On the other hand, Independent Contractors can have multiple clients, enjoy tax-related advantages, and gain substantial control over their daily lives: With increasing frequency, I hear people say that being in your own business has become more advantageous than being an employee, and the first thing they mention is freedom to live life as one sees fit. Perhaps to work from home, perhaps to work when desired, and perhaps even to decide to tell even the boss, “Just go away.” That said, as true job security becomes more and more an illusion, the supposed advantages of “job security,” and a regular paycheck is slowly diminishing. If employees are deemed valuable enough, they too can negotiate such freedom in their lives. 

4. Independent Contractors who feel they are really employees can raise an objection to their incorrect label, either anonymously or openly, either by themselves, to labor authorities or with legal counsel:  Not every independent contractor can negotiate higher pay to make up for the loss of the benefits and entitlements of being an employee. Many feel that they are being cheated by being falsely characterized as an independent contractor, and feel there is nothing they can do to correct this. It is true that raising an objection can end up in your losing your “job,” but there are ways to approach the problem in ways that pose a lower degree of risk:  

For those independent contractors who are still “on the job,” and who may be one of many people at the same company who are “treated and cheated” in this way, we often recommend consideration of transmitting an anonymous complaint to senior management.

For those independent contractors who are no longer “on the job,” but who wish they had been given the benefits and entitlement of employment while they were on the job, a respectful written request for recompense is suggested. If that does not work to gain payment of monies lost, then a formal complaint to the state labor board is suggested.

Finally, regardless of whether or not you remain “on the job,” a legal consultation with an experienced employment attorney licensed in your state might be helpful in deciding how best to regain the value of lost contributions and benefits.    

If you would like to obtain a list of at least five experienced “employee-side”  employment attorneys in your city, just [click here.]

5. One thing that can’t be negotiated: employees cannot negotiate away the many legal protections they are entitled to: Imagine if every employer said to every applicant for a job: “I will hire you, but only if you agree to be an independent contractor, and not an employee.” In that case, all of the many laws passed over the last 100 years to make employment in this society more civil, safer, and fairer – from minimum wage to FMLA to workplace safety – would instantly disappear. It is for this reason that employees cannot legally negotiate away the many legal protections they have been afforded, even if they are tempted to do so. Even if an employee signed an agreement in which he or she agreed to do so, it would not be enforced as “against public policy,” in the same way that a signed agreement to become a slave would be instantly and universally deemed a nullity.  

These are the five “basics” you need to know and bear in mind regarding “independent contractor vs. employee.” Forewarned is forearmed. Now you can both (a) negotiate and navigate the differences, and (b) if negotiation does not work, then file an objection to your improper treatment.  

SkloverWorkingWisdom™ 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 these five steps you can take regarding the “independent contractor vs. employee” is the place to start. Now the rest is up to you.       

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 SkloverWorkingWisdom™ is all about.

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

 Please Note: 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. 

 Repairing the World –
One Empowered and Productive Employee at a Time ™   

© 2012 Alan L. Sklover, All Rights Reserved.

“I skate to where the puck is going to be, not to where it has been.”

- Wayne Gretsky

At work, your employer’s needs change over time. And your employer’s customers’ needs change over time, too. For this simple reason your skills and abilities, and your promotion of your skills and abilities, must adapt to those changes. If not, sooner or later you’re likely to be dropped from the team. Don’t let that happen. Instead, stay “ahead of the puck.”

© 2012 Alan L. Sklover. All Rights Reserved

I also filed a three-count complaint with the federal Equal Employment Opportunity Commission (“EEOC”). More than 60 days have passed and they have not responded to that complaint, either, either to me or to the EEOC.

Have you ever heard of an employer never responding, and what should I be prepared for?

Michael
Charlotte, North Carolina

Answer: Dear Michael: In my experience, the non-response of your former employer is quite unusual. That said, I can think of a few reasons this might have taken place, and this is what you can expect:       

1. The failure of an employer to respond to an employee’s counteroffer and EEOC complaint could be plain old negligence or simple old arrogance. Napoleon Bonaparte said that, when trying to determine if something unusual is motivated by either stupidity or cunning, it is almost always stupidity. My own experience makes me agree with his assessment. Your file could still be sitting on the desk of some Human Resources representative who was fired six months ago. I have seen many employers act in this way.

2. The failure of an employer to respond to an employee’s counteroffer and EEOC complaint could also be a tactic of sorts: to ignore anything that it is not required to respond to (a) possibly to avoid committing to a position, and (b) possibly to save on legal fees. It remains possible, though, that your employer’s failure to respond could be intentional. First, no one has to respond to anyone else’s letter. It may be discourteous, it may be unwise, and it may be self-destructive, but that is not  illegal. Second, the same goes for an employer’s failure to respond to a Charge of Discrimination filed with the EEOC: it has no real consequences upon the employee or the employer.  

3. It’s important to understand that the EEOC does not find employers “innocent” or “guilty,” but only issues their conclusion regarding whether “probable cause” exists to believe discrimination has taken place. Some people believe – in error – that the EEOC is like a Court that finds parties “innocent” or “guilty.” Some people believe – in error – that the EEOC is an enforcement agency that can order employers to do what is legal, or pay some penalty. The truth is that the EEOC is simply an agency that (i) investigates allegations of discrimination, (ii) helps employees and employers settle their disputes, and/or (iii) issues a finding that  there exists, or there does not exist, probable cause to believe discrimination has taken place.

Either way – whether probable cause has been found or has been found not present – the EEOC then issues a “Right to Sue” letter, with which an employee can then file a discrimination lawsuit in Federal Court. (The EEOC may take on the cause of a mistreated employee or group of employees, but that is exceedingly rare.)  

All of the way up to an employee’s filing of a formal Court Complaint in Federal District Court, the employer can without risk simply ignore the process, although very few do so. So, ignoring both your letter, and the EEOC Charge of Discrimination you have filed, might just be a tactical decision of your former  employer’s legal counsel. That said, it would be rather uncommon.

4. Your employer may believe you won’t ever go to Court, or pay the money to hire an attorney to help you do so. If you filed your own EEOC complaint, your employer may believe that you do not have it in you to file and prosecute your own lawsuit, or the funds to hire an attorney to do so for you. Frankly, this is the most likely reason they may be simply “laying in wait” to see what happens after the EEOC process has concluded.

Please understand that you can file and prosecute your own federal discrimination lawsuit without an attorney. In fact, in each federal District Court there exists an office called the “Pro Se” office, which assists people in doing just that. “Pro Se” is Latin for “for yourself,” and in my experience Pro Se Clerks, who are licensed attorneys, themselves, are very understanding, helpful, and gracious, as are most Federal Judges when it comes to Pro Se litigants.

Personally, I love to see non-attorneys represent themselves in Court. They often do better than attorneys, and juries really love them!  

5. An employer can even ignore a filed Court Complaint, but doing so might just be to its considerable detriment. If one side in a Court case is served with a Court Complaint, and fails to respond in Court, the Court can find that person or company to be liable in what is called a “Default Judgment.” If, for example, an employer has gone out of business, or declared bankruptcy, it may ignore even a Court Complaint because you cannot collect money from a defunct or bankrupt company.

Obviously, Michael, I cannot even speculate why your employer has been completely unresponsive to your letter and to your EEOC Charge of Discrimination. That said, I would bet on the reason being one of those mentioned above.  

If you would like to obtain a list of five or more experienced employee-side employment attorneys in your city, just [click here].

Michael, I hope this is helpful, and that whatever you should decide, I hope you do not become intimidated or disillusioned by the actions or inactions of your employer. Standing tall takes patience and persistence, but it is surely worth it. I salute your efforts to date, and hope you keep at it! 

My Very Best,
Al Sklover

P.S.: Want a Blog of Your Own? Ever thought of developing an “Internet Presence” of your own. It’s a fun, challenging, and potentially rewarding thing to do. And it might even help you get a new or better job. We can help you. Just [click here.]

 Repairing the World –
One Empowered and Productive Employee at a Time ™   

© 2012 Alan L. Sklover, All Rights Reserved.