A New Year’s Checklist for Every Employee

January 7, 2014 by Julie A. Uebler, Esq.

As a lawyer who represents individuals in connection with their employment issues, I often provide advice to employees who are considering the terms of a new employment relationship.  At that point in the process, the client and the new company are usually thrilled to have found each other, and the client has a hard time focusing on what happens if the job ends.  My job in those cases is to spin out a series of “worst case scenarios,” and then advise the client how to minimize or avoid them.

No matter how much you love your job, or your boss, or your company, it does not hurt to be prepared for the worst.  After all, things change, and I spend far more of my time advising clients who are on the way out.  Someday, you may be one of them.  You can minimize your work-related risks, and maximize your flexibility, by taking a good look at your current employment situation using this Checklist.

Create “Termination Insurance” for yourself.

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 I said it:  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 my office knew they were at-will employees, and could be fired for any reason, but are still shocked when it happens to them.  I repeatedly find myself telling these folks that their situations sound terribly unfair, yet there is nothing I can do to help because being unfair to your at-will employees is not against the law.

So, how do you minimize this risk?  I 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 that will make you want to quit, so they don’t have to fire you.  If that is happening, dust off your resume and get in touch with your network before the situation escalates.

Also, and I know this sounds like a plug for Suze Orman, but you should work towards creating and maintaining 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.  Regardless of your qualifications, and regardless of the state of the market or your industry, it may take you 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 theyalso 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.

Update your resume and your list of references.

These days, your employment profile is reflected in a variety of places, including in a paper or electronic resume, an employer’s website, on LinkedIn, and a variety of other social media outlets.  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 across all communication platforms.  In this age of digital media, employers – current and prospective – have access to a large amount of data about their employees or job candidates.  You do not want the fact that you listed a prior job on LinkedIn, but not your resume, to raise red flags when you are next out in the market.  Get in the habit of auditing your various profiles regularly.

You should also take the time to invest in maintaining 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 three years.

Keep a “personnel file” for yourself.

If you are not already keeping a copy of everything you sign related to your employment, start now.  Go back and get copies of any documents that are material to your employment before you need them.  If you do not already have a copy of your non-compete agreement, you will not be comfortable going to Human Resources and asking for a copy once you are already in negotiations with a competitor to jump ship.   You should also maintain these documents outside of the workplace in case you are terminated without notice, and do not have the opportunity to capture the data.  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.

You should retain the following categories of documents:

  • – Documents that relate to the terms of your employment, including any offer letter, employment agreement, non-compete or confidentiality agreement, etc.
  • – All performance-related documents, including any formal reviews, the “at a girl” e-mails, and any documentation of performance problems.
  • – Compensation records, including pay stubs, documentation of pay changes, bonus payout paperwork, equity grant statements, etc.
  • – Employee benefit plans and summary plan descriptions.
  • – Employee handbook or other collection of Human Resources policies.

In Pennsylvania, you have a statutory right to inspect certain information in your personnel file.  If you ask your employer if you can see your file, and hit a roadblock, review your rights under the Personnel File Act.

Confirm the terms of any paid time off, bonus or commission plans.

I periodically get asked about how much vacation pay or holidays an employer in Pennsylvania must provide to its employees.  The answer is none.  There is no legal obligation for an employer to provide an employee with any paid time off.  If the employer does provide such pay, however, the terms of that arrangement will be governed by basic contract principles.  This is also true for any bonus, incentive or commission arrangements.  In most cases, these types of compensation may be enforced pursuant to the Pennsylvania Wage Payment and Collection Law, but that statute is just a mechanism to recover whatever the employer has already “promised” its workers.Your goal with respect to these types of payments is to have a clear, unambiguous, written understanding of the terms.

With regard to vacation and holiday pay, you should be able to confirm exactly what you are entitled to receive, whether the paid time off 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.

This is particularly important for employees who are eligible for incentive pay, including sales commissions.  You will want to know exactly what you are entitled to receive with respect to commissions in the event of a termination (voluntary or involuntary), and many commission plans are silent on this issue.  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.

Make a “Wish List” to use when you next have negotiating leverage.

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.  However, that might not be the only time you have leverage to improve your employment terms.  If you are promoted, asked to take on additional responsibilities, or your employer needs you, but perceives you to be at risk for leaving, you will again have negotiating leverage.  Employees in that position will typically focus on the typical “goodies,” such as more base pay, or more vacation time, or a larger target bonus.  If you find yourself with leverage, consider asking for employment terms that minimize your risks and maximize your flexibility, such as severance pay if you are terminated without cause or asked to relocate, or the elimination or narrowing of your non-compete obligation.

No doubt it is hard to find the opportunity to invest the time, energy, and resources to take these steps.  However, if it turns out to be you next time – and not your neighbor or cousin or former coworker – who gets caught off guard by a termination, it will be worth it.

Best wishes for peace (of mind) in 2014!

Julie A. Uebler, Partner | Employment Law

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