THE POWER OF DOCUMENTS

WHEN TO DISTRUST YOUR EMPLOYERS

PROBLEM PEOPLE AT WORK

 

 

Advice on the Job . . .

 

This section provides practical suggestions for employees with problems at work who have not terminated their employment.  Included are sections on the Power of Documents, When to Distrust Your Employer, and Problem Individuals at Work. Within each section are “Case Studies” which are examples of employees dealing with common problems within each topic area.

 

THE POWER OF DOCUMENTS


Documents are just paper, but paper can have tremendous power. Documents can change the rules that govern your entitled rights. Documents can also provide evidence that may help you successfully assert your rights.

 

Some types of documents don’t really have much power at all to help employees. Contrary to what many employees have been advised, in general “documentation to the file” or documents prepared by the employee that are kept private cannot be used as evidence by the employee but can be used as evidence AGAINST the employee.      

 

 

 

 

Employment Agreements

 

The clearest example of the power of paper is the employment agreement.  As an enforceable contract, it dictates the rules of the game.  Employment Agreements can give you RIGHTS to job security, to severance after termination, and to specified benefits.  Employment agreements can also take away important rights, such as the right to have disputes heard by a jury. Because of the importance and technical nature of the terminology in these agreements, an employee should NEVER sign an employment agreement without first consulting an attorney. 

 

Traditionally, only key employees or employees in a very tight job market have sufficient clout to get good employment agreements. Sometimes executives also get very favorable contract provisions in the event of a “change of control” as part of a company’s attempt to dissuade outside corporations from a hostile takeover of the company.

 

Unfortunately, Employment Agreements are often used to TAKE AWAY rights for employees rather than to confer rights.  This is for obvious reasons: employers do not want employees to have extra rights.  Common rights which employment agreements may take away include: the right to work for a competitor immediately following termination, the right to enforce verbal promises of job security, and the right to litigate (as opposed to arbitrate) employment disputes.   

 

The key language to look out for in employment agreements and other employer documents is language that says that you are an “at will” employee who can be terminated at any time for any reason. While it is true that generally throughout the United States almost all non-union non-government employees are employed “at will”, in many states promises of job security or job guarantees are enforceable unless the employee directly or indirectly consents to being an “at will” employee.

 

Although the "at will" language often appears in handbooks to pretend to give you something (the right to terminate yourself!), this language is designed to do one thing  ­ take away many legal rights.  Remember, if you agree to this language, you may be giving up all rights to job security or fairness you might otherwise have, regardless of future promises to the contrary and regardless of other language in the agreement.  Be careful.

 

There are four basic rules for employees in dealing with employment agreements.   

  1. GET ONE if you can, rather than relying on verbal promises.

  2.  WATCH OUT for “at will” language;

  3. DO NOT SIGN AN EMPLOYMENT AGREEMENT unless you have consulted an employment attorney to help you understand and/or negotiate the terms. Do not assume that you can understand what the agreement means by yourself.  Even if ordinary words are used in the agreement, the words do not necessarily have ordinary meaning under our legal system.

  4. RESPECT THE POWER of employment agreements and take them seriously.

    See Case Study: Mia’s Contract

 

Confidentiality and Non-Compete Agreements


Confidentiality and Non-Compete Agreements are limited in scope. These agreements often do not say anything at all about the length or "terms" of employment or  the basis for termination. The focus of these agreements is on restricting the relationship between employees and their future employers, rather than on restricting or defining the current employment relationship.

 

In confidentiality agreements, employers restrict what employees can disclose to the company’s competitors.  In non-compete agreements, employers restrict the right of employees to work for competitors. The disclosure restriction is often permanent while the right to work restriction is usually limited to one or two years.

 

These agreements frequently “over-reach” and contain provisions that are unfair and/or unenforceable. Employees often do not pay much attention to these agreements, but they may come back to haunt them after they no longer work for their employer and are in the job market again.

 

 If you are required to sign one of these agreements, consider the following:

  1. Read the agreement.  Do not sign something that is wrong.  For example, if the agreement wrongly classifies certain information as a “trade secret” or as “confidential”, do not agree to it without first consulting with an attorney and/or attempting to negotiate the agreement.

  2. Carefully consider the non-compete provision.  What happens if you are fired in two weeks?  Is the non-compete provision over broad?  Will you realistically be able to find suitable re-employment if you sign the non-compete provision?  Again, if you have any concerns, you should consult with an attorney and/or negotiate the agreement. 

See Case Study: Perry’s Non-Compete

 

 

 

Offer Letters

 

Letters offering job positions are another type of powerful document.  Offer letters can be enforceable as contracts if they are specific enough even if both parties do not sign them.  These letters are particularly important where specific promises are made which the employee relies on in changing jobs or relocating.  Look for guarantees of employment for a specific length of time, specified salary, bonus and stock option terms and/or job title and job responsibilities.   

 

If the new position involves a start-up or new division, be particularly careful.  You may want the offer letter to include a reference to adequate financial backing and/or corporate commitment by the parent corporation or venture capital group.  If you are a commission based sales person, you may also want some reference to the status of any new key product in development. If the value of promised stock options are important, you will want something about the financial condition of the company and specific representations as to the number of options, strike price and vesting schedule relating to the options. 

 

If the offer letter does not specify the terms you will be relying on, request those terms in writing prior to accepting the position.  If that is not possible, at least confirm the verbal terms in writing with your own letter as evidence to protect yourself.

 

In general, vague references to a “possible equity position”, “stock options in a plan to be established by the Board of Directors”, and a “bonus based on performance” are not enforceable. Moreover if the offer letter specifies that you will be an “at will” employee or that you can be terminated at any time for any reason, take heed and do not rely on any verbal assertions to the contrary. 

See Case Study: Promise Protection for Brian

 

 

 

Policy Manuals, Corporate Codes of Conduct and Employment Applications

 

These documents are also powerful, but they do not usually help employees.  Sometimes company manuals give employees rights, but for the most part, they contain sophisticated legal language that is designed to nullify employment rights.  In general, policy manuals are an attempt by companies to set rules that employees cannot enforce but are required to follow. 

 

Again be wary when the policy manual says, “Just as you are able to terminate your employment at will, we can terminate your employment at any time for any reason.”  That translates to: “You have no job security rights whatsoever and we want to be able to terminate you for any bad reason without you being able to sue us.”  Likewise the statement, “This handbook is not intended as a contract and we reserve the right to change it at any time,” translates to: “We expect you to comply with this handbook or we will fire you, but don’t expect us to comply with it.”

 

If you believe that you have been promised some kind of job security, do not sign any acknowledgment that you have read and agree to the provisions of an Employee Handbook.  Furthermore, if you receive a handbook with general “at will” language in it and you have been promised that you will not be terminated without cause or for a specified period of time, confirm this in writing and confirm that the handbook "at will" language does not apply to you.

 

Employment applications often have statements in fine print that you are an “at will” employee who can be terminated at any time for any reason.  If that is contrary to your understanding of your arrangement with your employer, do not sign your application without first crossing out this language.  

 

 

 

 

Stock Options Agreements and Benefit Plans

 

Employees with benefit plans have rights which are based on "plan documents".  Under federal law, retirement and medical benefits have to be administered as provided out in the plan documents. Stock option plans are also governed by securities laws.  Statements concerning these plans which are inconsistent with the plan documents are usually unenforceable.

 

Remember when your employer promises that you will be entitled to 10,000 stock options or promises you an “equity interest”, these promises are not enforceable without an actual written stock agreement.   You might be able to sue your employer for making a fraudulent promise if he is specific enough about the promise but even then, you will not be able to recover economic damages unless it is possible to place a value on the options or the equity interest.

 

Benefit Plans are governed by ERISA and your employer is not permitted to deviate from it’s Benefit Plan in conferring these benefits.

               

 

 

 

Written Commission Policies

 

Salespersons with written commission schedules have documents that limit their employer’s ability to dispute the applicable commission rate.  If you are a salesperson and your commission agreement is vague, unclear or verbal, try to get a firm written commitment.  If necessary, confirm the agreement yourself with a written memorandum to your supervisor.  Do this BEFORE your sale. 

 

Consider issues such as:

  1. Extra large, extra high profit, or extra low profit sales;

  2. When your commission will become due in relationship to the timing of the sale and subsequent vendor payment;

  3. Effect of your termination on your ability to collect a commission and whether the type of termination makes a difference;

  4. Sales where contribution of more than one salesperson is involved;

  5. If orders are of a continuing nature from an initial sale and your commission requires your continuing employment at the time of payment, consider whether your employer will have a motive to terminate you in order to prevent the commission payment obligation.

See Case Study: Sara Gets Her Commission

 

 

 

Union Contracts

 

The union contract is another type of very powerful paper.  Union contracts govern the rights of union employees.  Besides guaranteeing salary and benefits, this contract often provides for a grievance procedure, and job security and prohibits the employer from taking disciplinary action without “just cause.”  Union contracts may also take away rights, as when they require employees to use the grievance or arbitration procedures to settle disputes instead of permitting employees to pursue their legal remedies.

 

If you have a union contract and have a serious problem at work, you should contact your union to ascertain what your rights are and whether they will assist you.  If you are unhappy with the advice or assistance your union is giving, you should see an employment attorney who has expertise in representing union members.

 

 

 

 

Confirmation Letters

 

Instead of directly conferring or taking away rights, confirmation letters are documents communicated between the employer and the employee that provide indirect EVIDENCE of rights.  Employees often fail to appreciate the power and value of confirmation letters.

 

If you receive any IMPORTANT PROMISE which you rely on and which your employer is not willing to put in written form, confirm it yourself in a letter.  Consider using confirmation letters to confirm:

 

  • Salary, bonus, stock options and other benefit promises;

  • Job security understandings;

  • Commission agreements;

  • Corporate funding commitments to new entities or projects to which you are assigned;

  • Promotion or job assignment promises.

  • Support and staffing promises

 

Suggestions for Confirmation Letters:

 

  • Make sure you keep a SIGNED COPY, not just your computer draft.

  • The letter should be as specific, complete and concrete as possible.

  • You should use the term, “This is to confirm my understanding that . . .” or comparable language.   It will also be stronger if you add, “I will assume that you share this understanding unless I hear back from you in writing.” 

  • Do not hesitate to consult an employment attorney if you are uncertain and the letter is important.  Your employer never needs to know an attorney was involved.

    See Case Study: John Confirms His Vacation

See Case Study: Erica Confirms Her Offer

 

 

 

Documents Relating to Employment Performance

 

Documents relating to your employment performance also have significant power as evidence.  Keep copies of favorable reviews, written compliments, and awards.   They can protect you legally and practically if your work performance ever becomes an issue.  Do not rely on your employer to keep copies of these documents.  Employers can lose, purge and alter personnel documents. Moreover do not assume you have any automatic right to review your own personnel file.

 

Pay attention to any unfavorable evaluations or written warnings.  These usually mean a termination is eminent.  If you are documented unfairly and the documentation is serious, respond in writing in a matter of fact non-defensive way.

 

Do not refuse to sign an unfair evaluation because that could constitute insubordination. Sign the evaluation, but indicate in writing on the evaulation that you do not agree with it.

 

Although you need to respond to serious unfair written comments regarding your performance, be wary of starting a memo war.  Being overly argumentative, aggressive, or unwilling to accept feedback can jeopardize rather than help. Remember when you are upset or angry, your judgment may not be the best.  

Suggestions for Responding to Performance Criticism: 

  1. Disregard performance criticism unless it is truly SERIOUS and jeopardizes your career.

  2. Be factual rather than defensive.

  3. Try not to be attacking even though you feel attacked.

  4. In a response, focus on your positive achievements and contributions, not on the unfair criticism.

  5. Write your response in a careful and formal manner (The response will be more intimidating if written so that someone outside the company could understand and appreciate your comments) 

  6. Do not respond when you have strong feelings that you have little control over.  Always get a wise and objective friend to review what you have written before sending it.

  7. If you feel you may have been discriminated against on a prohibited basis such as age, race, sex or disability, or retaliated against illegally, you should always include this in your response and consider asking an employment attorney to assist you behind the scenes in drafting your response.

    See Case Study: Cecilia’s Performance Response

    See Case Study: Jill’s Ranking Challenge

    See Case Study: Bob’s Spell of Righteousness

 

Written Complaints of Discrimination or Corporate Misconduct

 

Written complaints of discrimination or corporate misconduct can have great power.  If you are going to complain to your employer about something illegal such as sex or race discrimination, safety violations or other illegal conduct, you should make your COMPLAINT IN WRITING because the writing gives evidence that helps protect you from any subsequent retaliation by your employer.  You may want to see an employment lawyer to help you behind the scenes draft your written complaint to your employer to set up your claim properly. 

                                                                               

Employees are understandably afraid when they make these kinds of complaints, and they often understate them or do not put them in writing. Employees often feel it is safer to complain about "unfair treatment" rather than sex or race discrimination. Do not make this mistake.  Putting these complaints in writing in a straightforward non-inflammatory way provides the employee with major PROTECTION.  This is true because:                               

  1. Employees are usually required to use internal grievance procedures to complain about sexual harassment and discrimination practices.

  2. Employers regard written complaints more seriously than verbal complaints because there is a permanent record.   Without the written evidence of a complaint, employers are free to argue that they never received a complaint and therefore are not responsible. 

  3. Employers worry about being “set up” for a lawsuit when they receive a well-written discrimination complaint.

  4. Employers are afraid to retaliate against an employee after receiving a written discrimination complaint because they are afraid of a lawsuit.

See Case Study: Rita’s Complaint

 

 

 

Documents Without Power

Secret Documentation to Yourself:
 

Many employees think that if they secretly document events at work, they are empowering themselves.  This is NOT true.  Your own writing that goes nowhere but to yourself gives little, if any, protection.
 

Many employees believe that if they document wrongs that are happening at work by writing specific details in a private calendar, journal or notebook, they are strengthening their “case” against their employer.  Unfortunate, the reverse is true.   Ironically, in a lawsuit your employer can use this type of paper against you to impeach or contradict your story, but you cannot use it to help your case!  Moreover, most employees are not aware that if they bring a lawsuit, employers are entitled to obtain this documentation from them, whether or not they wish to produce it.

 

Sometimes documentation of details can help you remember events more accurately, but you should remember that this documentation might end up in your employer’s hands.  If you wish to keep your notes private or retain control over their access in the event of future litigation, you should hire an attorney and address the notes as a communication for your attorney.                        

           

Secret Documentation to the Personnel File by the Employer:
 

What applies to the employee, also applies to the employer only to a lesser extent.  While the employee is forbidden to use his private documentation as an exhibit at trial, the employer may still be able to use the documentation at trial as a business record.  However, when an employer secretly documents the transgressions of an employee, but refuses to provide the documentation to the employee, the paper loses its power.   Most jurors know from common sense that the employer would not keep the document secret from the employee unless the employer was trying to hide something.

 

 

 

Suggestions for Using Documents to Increase Your Rights

  1. Get A Written Employment Agreement if At All Possible
     

    There is no substitution for rights guaranteed by a written contract.  If a promise is really important to you and your employer really wants to hire you, they should be willing to make the promise part of an enforceable employment agreement.
     

  2. Avoid or Renegotiate Documents that Take Away Your Rights
     

    Employees are often asked to agree in writing to non-compete provisions.  Employees are also often asked to affirm in writing that he or she is an “at will” employee and that he or she has not received any verbal promises to the contrary from any supervisor.   DO NOT AGREE to these provisions unless you are willing to live with them.  Often these terms can be negotiated and, at least, qualified or narrowed in scope.

     

  3. Always Confirm Important Verbal Promises in Writing.
     

    If your employer’s promise is important and your employer will not put the promise in writing, you should write a confirming letter reciting the promise.
     

  4. Remember E-Mail is Evidence
     

    E-mail, although casual communication, is still paper and has POWER.   Be careful with your own e-mail communications.  Do NOT use your e-mail at work for personal purposes.  You can easily create your own bad Magic Secondary Paper with e-mail and other casual written communication if you include inappropriate sexual, personal or aggressive content. If your company wants to terminate you, they sometimes use experts to retrieve incriminating e-mail that you thought had been deleted from the system.
     

    E-mail can also work to help the employee.  Be sure to keep e-mail from your employer that relates to your employment performance or that can provide any evidence of promises your employer has made.
     

  5. Keep Copies of Favorable Evaluations, Written Compliments and Awards
     

    Do not trust your employer to keep these.  Keep your own file and use them if necessary.
     

  6. Make Sure Your Complaints of Discrimination or Illegal Activities Are in Writing
     

    This is VERY important if you want legal protection from retaliation and you are interested in leaving the company and negotiating a favorable severance package. 
     

  7. Avoid Taking or Keeping Unauthorized Documents 
     

    Be careful of these documents!  If you do not have the right to possess company documents or to retain copies after your termination, taking these documents can constitute a wrong that may justify your termination after the fact. Even if you have been terminated for an illegal reason, you may lose your legal damages remedies.
     

  8. Don’t Set Off a Memo War
     

    Don’t respond to criticism with more of the same.  Do not respond at all unless it is really important to do so.
     

  9. Respond to Unfair Bad Performance Evaluations and Disciplinary Warnings
     

    If you have a REALLY bad performance review or a disciplinary warning that is unfair, you do need to respond.   Be objective and non-defensive.  Stress the positive aspect of your performance rather than the unfairness of the review or warning.  Do not attack your supervisor if possible.
     

  10. Watch Your Own Incriminating Communication
     

    Avoid curt, disrespectful, inflammatory, emotional or other unprofessional comments in your written communication at work.  Remember, these can come back to haunt you.    Do not forget the power of documents.