Negotiating Your Next Job Offer – When It’s About More Than The Money.
September 25, 2015 by Julie A. Uebler, Esq.
In my experience, the clients who have suffered through an involuntary termination of their employment are much better about negotiating the terms of their next job. There is nothing like being fired from a job without any severance to make you want to put severance protection on the top of your wish list for the next opportunity. What I also see, however, is a reluctance to negotiate for “non-monetary” terms that could be just as – or even more – valuable than your pay rate or whether you are eligible for a bonus.
I know the job market is tight, but I also wish candidates would ask for what they need to be successful more often than they do. A candidate’s typical concern is not wanting to seem too overbearing or demanding, or not wanting to ask for terms that are unique, or could be misconstrued as projecting a lack of commitment, such as flexibility to work remotely. I have two responses to such concerns – (1) don’t waste your leverage, and (2) it can’t hurt to ask.
At the start of a new employment relationship, or when you are offered a promotion or other special project, you have more leverage to sweeten the terms of your employment arrangement than you will have at any other time. Certainly more than you will have when your job is eliminated or transferred to a new location hundreds of miles away.
In the spirit of encouraging job candidates to ask for more than money in their next negotiation, I have listed a few non-monetary terms that are likely worth the effort. If you are successful in negotiating favorable terms, make sure they are verified in writing. When the hiring manager says she accepts your proposals, but does not want to put them in writing, you can say you trust her to follow through, but what if she gets promoted and someone else becomes your supervisor?
Work location, travel requirements, and flexible work arrangements.
You interview for a job with the (unstated) expectation that you will be working out of a local office. In six months, the job location is moved to the corporate headquarters 100 miles away. Or, the hiring manager describes the travel expectation for the new job as 20%, but in the first few months in the new position, you are traveling more than 60% of the time. Or, your soon to be boss says it’s “no problem” when you ask for the flexibility to work from home two days a week to avoid the commute, but then you have a new supervisor within six months who wants you in the office every day. If you can include work location, identify travel expectations, and/or confirm flexible work arrangements in your offer letter, you will have more leverage to insist on these terms as part of your continued employment. Ideally, you want to seek severance protection in the event the employer changes key terms of the job after you start. See the discussion of severance below.
Many employers have severance plans or policies already in place. Find out if you would be eligible for severance protection, and if so, in what circumstances and in what amount. This information can give you an idea of what the employer already thinks is reasonable. The more leverage you have, the more likely you can secure severance protection not only in the case of an involuntary termination, but also in the event you resign with “good reason,” such as a significant change in your job. Keep in mind that the employer has the discretion to change its severance plan or policy on a go forward basis, so it might be amended or eliminated by the time you might need it. As a result, it’s best to get the employer to agree to severance protection in an offer letter or employment agreement. An experienced employment attorney can help you craft proposed language.
Limiting Restrictive Covenants
I often hear employees say: “Well, I signed a non-compete, but it’s not really enforceable, is it?” The short answer is “yes,” they are generally enforceable under Pennsylvania law as long as they are reasonably necessary to protect the employer’s legitimate business interests, and are reasonably limited in scope, duration, and geography. So, it’s best to assume that the restrictive covenant you end up signing at the start of your employment will be generally enforceable five years later when you decide to leave. Give some thought to whether you can negotiate for more narrow restrictive covenants (whether for a shorter time period or a more limited scope) at the time of hire when you are all still friends. This is a tough one because most employers want to have all their employees, or all employees in a particularly job category, sign the same non-compete and/or non-solicitation restrictions. However, this definitely goes onto the “it can’t hurt to ask” list.Some employers’ restrictive covenants are so overly broad that it is clear they won’t be enforced as written. One way to approach this issue is to ask that the restrictions be more specifically tailored to your job so that there is no uncertainty or ambiguity as to whether, and to what extent, they will be enforceable.
If the hiring manager is put off by your proposed terms, or by your request they be confirmed in a written agreement, you might learn that the position is not necessarily your best option, even if it has the highest monetary value.