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.
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.
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.
GET ONE if you can, rather than relying on verbal promises.
OUT for “at will” language;
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.
RESPECT THE POWER of employment agreements and take them seriously.
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
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
If you are required to sign one of these agreements, consider the
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.
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
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.
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.
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
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:
Extra large, extra high profit, or extra low profit sales;
When your commission will become due in relationship to the timing
of the sale and subsequent vendor payment;
Effect of your termination on your ability to collect a commission
and whether the type of termination makes a difference;
Sales where contribution of more than one salesperson is involved;
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.
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.
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
Salary, bonus, stock options and other benefit promises;
Job security understandings;
Corporate funding commitments to new entities or projects to which
you are assigned;
Promotion or job assignment promises.
Support and staffing promises
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.
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:
Disregard performance criticism unless it is truly SERIOUS and jeopardizes
Be factual rather than defensive.
Try not to be attacking even though you feel attacked.
In a response, focus on your positive achievements and contributions,
not on the unfair criticism.
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)
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.
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.
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:
Employees are usually required to use internal grievance procedures
to complain about sexual harassment and discrimination practices.
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.
Employers worry about being “set up” for a lawsuit when they receive
a well-written discrimination complaint.
Employers are afraid to retaliate against an employee after receiving
a written discrimination complaint because they are afraid of a lawsuit.
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
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.
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.
for Using Documents to Increase Your Rights
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.
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
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
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.
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.
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
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.
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.
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.
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