“Back to School” Homework for Every Employee
It’s that time of year again. Summer is winding down. We are getting ready for a new season. And, as the kids head back to school, we’d like to give every employee out there some “homework.”
As employment lawyers who represent individuals, we often work with employees who are in transition. Sometimes, that transition is a positive one, such as a new job offer or a promotion. Other times, the transition is negative (or at least stressful), such as a medical issue that requires a leave of absence or notice of an involuntary termination.
No matter what the reason for a transition at work, every employee can minimize their work-related risks, and maximize their negotiating power, by doing the following dive “homework assignments.”
- Keep Your Own “Personnel File”
If you are not already keeping a copy of everything you sign or are given related to your employment, start now. Go back and get copies of any documents that are material to your employment before you need them. You do not want to have to ask for a copy of your non-compete agreement once you’ve decided to jump ship and are in negotiations with a competitor.
The following documents should be in your personal “personnel file”:
● Offer letters, employment agreement, or contracts that contain the terms of your employment
● Confidentiality, non-compete, non-solicitation, or other similar restrictive covenants
● Your job description
● All performance-related documents, including any formal performance reviews, the “great job” e-mails, and any documentation of performance problems or criticisms.
Although not specific to you, it is also very useful to have ready access to the company’s Employee Handbooks or other collection of Human Resources policies.
As you gather the documents related to your employment, keep them in a safe and convenient place outside of the workplace. If you are terminated without notice, you may lose the chance to gather any documents on your way out.
Generally speaking, employees are permitted to keep documents about their own employment status, but always check to make sure you are complying with any employer confidentiality policies.
- Get Copies Of Compensation Records and Bonus Or Benefits Plans (and Read Them)
You also want to keep a file (electronic or otherwise) of any documents relating to your compensation and employee benefits, including:
● Pay records, including pay stubs and documentation of any pay adjustments
● Annual or cash bonus plans and documentation of targets or payouts
● Equity plans and grant statements
● Employee benefit plans and summary plan descriptions
● Vacation or paid time off policies
Make sure you know how much paid time off you are entitled to take, whether it is accrued over time or granted at the start of the year, whether it can be carried over year to year (and how much), and what, if any, amount is paid out at termination. If these details are not contained in any formal written policy, take a moment to speak with your boss or Human Resources manager to confirm your understanding, and then document the conversation.
If you participate in a bonus or commission plan, make sure you know exactly what you are entitled to receive in the event you go on a leave of absence or in case of a termination (voluntary or involuntary). If you quit or are fired just after the contract for a large sale is signed, but before the revenue has been received, are you entitled to any of the commission you would have received if your employment continued? If you don’t know, now is the time to confirm.
- Update Your Resume and Your List of References
In this era of constant change, it is important to make sure your employment profile is updated and consistent across platforms. Although your resume may exist in electronic form on your computer, your employment status and history is reflected in a variety of places, including an employer’s website, on LinkedIn, and a variety of other social media profiles.
Take a few minutes to make sure your profiles have an accurate reflection of your education, employment history, and experience, and that the data is consistent. Prospective employers have access to a large amount of data about job candidates. You do not want the fact that you listed a prior position on LinkedIn, but not your resume, to raise red flags when you are next out in the job market. Get in the habit of auditing your various profiles regularly.
You should also invest the time to maintain close contact with several people who can serve as your references, both inside and outside your current company. If you face the situation of being laid off or terminated from a current employer, it would be helpful if the call you make to your prior boss to serve as a reference is not the first time you’ve spoken in several years.
- Identify Your Next Point Of Leverage and Be Ready to Negotiate
You will have the most leverage in negotiating favorable employment terms at the start of your employment when the employer has first decided to offer you a job. Remember when you were last offered a new position? Did you use the leverage you had in that moment to get the best (or at least a fair) deal? If you did, good for you. If you didn’t, you can still get ready for the next time you have leverage to improve your employment terms.
If you are offered a promotion, asked by the head of your department to work on a large new project, or your employer needs you, but perceives you to be at risk for leaving, you will again have leverage to negotiate. To be ready for that opportunity, make a “wish list” about what is important to you. The things on your “wish list” might be a higher rate of pay, more vacation time, or a larger target bonus.
Although it is always nice to have more cash in your pocket week to week, don’t forget to consider employment terms that minimize risks when you are creating your “wish list.” For example, if you find yourself with leverage to negotiate, consider asking for severance pay if you are terminated without cause or asked to relocate, or the elimination or narrowing of your non-compete obligation. Although it might feel awkward to focus on what happens when your job ends, these protections can give you valuable peace of mind.
- Hope for the Best, But Be Prepared for the Worst – Build Up “Termination Insurance”
Most workers are considered “at-will” employees. This means that you or your employer may end the employment relationship at any time and for any reason without notice. Unless you have a written contract for a specific “term” of employment, or are covered by a collective bargaining agreement with a “just cause” provision, then you are an at-will employee.
In case this was not clear the first time: YOU CAN BE FIRED AT ANY TIME FOR ANY REASON WITHOUT NOTICE. This is true as long as the employer has not acted for an illegal reason, such as discrimination based on a protected class (age, race, gender, etc.).
Most people who call our office knew they were at-will employees, and could be fired for any reason, but are still shocked when it happens to them. We repeatedly find ourselves telling these folks that their situations sound terribly unfair, yet there is nothing we can do to help because being unfair to your at-will employees is not against the law.
So, how do you minimize this risk? We first suggest that people rely on their intuition about a bad work situation, and start seriously looking for another job as soon as they feel it. If you believe you are being excluded, shunned, or forced out, it is probably not all in your head. Take this as an early warning sign. Often, managers will take a passive-aggressive route to wanting you gone, and will do things to make you want to quit, so they don’t have to fire you. If that is happening, update your resume and get in touch with your network before the situation escalates.
Also, if you don’t already have a cushion of at least six (6) months of living expenses (or, 9-12 months is even better) to protect you and your family from panic in the event of an unexpected termination, start working towards that goal now. No matter how qualified you are or what the job market looks like for your particular job or industry, it may take several months, if not more, to find new employment. You likely have disability insurance in case of an accident, and life insurance in case of your death. Think of this savings plan as “termination insurance.”
The other reason to have “termination insurance” in place is to protect your right to pursue employment claims if you have any. In many cases, employees who are terminated are not offered any kind of severance pay. However, there are situations in which the employer will offer some type of severance package that is contingent on the employee’s release of all employment-related claims, particularly if the employer perceives that its termination decision is subject to challenge. Often, employees in that situation have no reasonable choice but to sign the release in order to get the pay and benefits to support their families, even if they also have a basis to legally challenge the termination. If employees have a financial cushion, they have much more flexibility to evaluate and pursue employment claims, if warranted by the circumstances.
No doubt it is hard to invest the time, energy, and resources to take these steps. But when the kids are back to doing their homework this week, it’ll be worth it to do yours too.