April 2015 Archives

Tips to Reviewing Severance Agreements

You have just been handed a severance package or agreement, now what? You are still reeling from the termination, whether its a company wide layoff or a targeted one.  Meetings with the human resources representative in the HR conference room are never a good thing.  This means a big change in your life, even if you were expecting it and you need to proceed with caution, even if the severance payment being offered is attractive.  Here is a guide to help you through the process of analyzing your options. 1. Ask yourself why this happened?  If you believe that the company was motivated by something other than a need to reduce its workforce in the normal course of its business, then stop and take a deep breath.  You should contact an employment attorney before taking any further steps.  It is worth discussing the facts and circumstances of your termination from the company before you even think about signing the severance agreement. 2.  Look closely at the release language.  Every severance agreement, without exception, will contained a page or more of detailed language essentially requiring you to release and waive any and all claims against the company, whether known or unknown arising at any time.  This is the only basis under which the company will be prepared to pay you any money at all as it is the employer's objective to have full and final closure on all of your claims.  If you believe that you have any claims that are being waived by signing the agreement, you should consider what the value of those claims are in comparison to what the company is paying you.  Ultimately, you have to make an economic decision as to whether it is worth it to pursue those claims or better to accept the severance payment and sign the release and waiver. 3.  Consider your existing obligations to the company.  Think back to what agreements you signed when you joined the company.  Was there a non-compete or non-solicitation agreement to which are you presently bound?  What are the ramifications of those agreements in relation to this severance agreement?  Those agreements will remain in full force and effect and may restrict your ability to find a new job in your field.  When considering the facts and circumstances of your termination and the severance package offered, you have to consider and balance what you are giving up.  This is especially important if you believe that you are being forced out of the company through no fault of your own. You will have a good instinct about what you have experienced at work and whether this termination is related to some form of discrimination or is simply a fiscal decision.   You should consider speaking with any attorney before signing any release and waiver of claims to ensure that you are making an informed decision.  Once signed and after the money has changed hands, it is highly unlikely that you will be permitted to bring a claim against the company, regardless of how strong it is.  Knowledge is power and you should always act from a position of power.    

No Unemployment Benefits if You Quit for Being Yelled At by Your Boss!

We've all been there!  Dealing with the office bully, who may happen to be your boss, is no easy task.  But before you quit, consider this case.  An attorney, Ann Dooley, worked for a large firm.  She was publicly berated and humiliated by a partner when she sought the assistance of another attorney in a large class-action case she was working on.  For those of us who have worked in law firms, this is par for the course.  However, Ann wasn't going to take it.  She quit and then applied for unemployment benefits. The Unemployment Compensation Board of New Jersey denied her benefits at several levels of appeals.  The New Jersey Supreme Court affirmed, finding that she had voluntarily quit without good justification, and hence, wasn't entitled to receive benefits. The take away:  The Court held that "sensitivity to criticism" was not good cause to quit a job and receive unemployment benefits.  The Supreme Court of New Jersey and the Unemployment Compensation Board applied the same legal standard as applied in constructive discharge cases, i.e. that the work situation was so terrible and so unreasonable that the employee was left with no choice but to leave.  The standard is an objective one, i.e. asking whether a reasonable person would have been forced to  leave, not whether this particular employee was forced to leave.  I once won an Unemployment Compensation appeal where my client testified that the reason she left her job was because her supervisor was having sex on her desk and that after she complained about this to management, she also discovered that someone was urinating on her desk.  Now, thats good cause and she was awarded unemployment benefits.  So unless you have such an offensive work environment,  are suffering such egregious workplace harassment, don't quit and expect to receive jobless benefits.

Booz Allen v. Deloitte Consulting: A Cautionary Tale for NJ Employers

http://www.njlawjournal.com/home/id=1202724384431/Booz-Allens-Suit-Over-Defections-to-Deloitte-Survives?mcode=1202617074826&curindex=0   Booz Allen sued when a group of its employees resigned and went over to Deloitte.  A federal Judge in Newark, New Jersey, denied Deloitte's motion to dismiss the claims, allowing Booz Allen to proceed with its case. This is an interesting case and one that employers everywhere should pay close attention to. Booz Allen sued Deloitte claiming that management level individuals at Deloitte orchestrated the major defection of a group of employees in the IDIL (Instructional Development and Immersive Learning) Team.  The defection delayed Booz Allen's project deliverables to clients like the U.S. Department of Commerce, the Army and the Air Force and caused them significant damages. So, what can we learn as we await the outcome of this lawsuit? 1.   A key detail in this case is that none of the Booz Allen employees were bound by non-competes or non-poaching/non-solicitation restrictive covenants.  But that didn't prevent the law suit.  Booz Allen was still able to sue based upon a claim that Deloitte tortiously interfered with Booz Allen's business by recruiting away employees in the IDIL group. 2.  Employers should also be aware about the type of liability that can attach to them from the actions of their management and leadership.  Booz Allen sued on various claims, including fraud and civil conspiracy.  Not only do those claims come with the threat of a punitive damages award, they come with the added hammer of damage multipliers and fee shifting provisions contained within the statutes.  In fact, these claims are far more costly that in the Booz Allen employees were actually bound by contractual restrictive covenants. While Deloitte management may or may not have been involved in or sanctioned these actions, as the employer it will pay the price if it loses the law suit.  And unfortunately, as is the case with any litigation, Deloitte will pay a hefty price even if it doesn't lose. 3.  As a best practice, employers should, as lawyers must, avoid the "appearance of impropriety."  This means that all of your actions should pass the sniff test.  It is smells even slightly off, don't do it.  While the proposed pay off may appear attractive at the outset, you had better believe that, if caught and brought to court, the damages and head ache of being in litigation will far outweigh the initially perceived benefit.  Put another way, if its too good to be true, then it most likely is.

Privacy Rights in the Workplace: Employees and Employers Beware!

Do you have a right to privacy at work? As an employer or employee, it is imperative that you understand the parameters of your right to privacy while at work. As a general rule, employees are not entitled to an expectation of privacy when using work emails on devices owned by the employer. This is especially true of communications, whether via email or telephone, undertaken on employer owned devices while on the employer's time.   Remember that employer issued computers, laptops and smart phone are owned by the employer and hence, the data can be accessed by the employer, with one very limited exception. The exception to this rule is that an employee is entitled to an expectation of privacy when using a personal email address which is password protected, even if it is accessed through an employer owned device such as a smart phone, tablet or computer.   While this is the general rule in New Jersey and Pennsylvania, you should clarify what the specific rule is in the state where you live and work.  But consider this-regardless of what the legal protections are it is a best practice to never use employer emails and/or devices to conduct personal communications.  That act in itself, even though not a legally protected communication, could create grounds for termination under the employer's personnel rules as outlined in the employee manual or handbook. As an employer, you should make the scope and limitations of this expectation of privacy clear in your employee handbook. As an employee, you must assume that you have absolutely no expectation of privacy in personal communications conducted using your employer's devices. Hence, if you are planning on bringing a claim against your employer for some form of discrimination or harassment, you should never use a work email or work device for any privileged communications with your attorney or witnesses. You should be aware that everything post on the internet or backed up to company servers or the cloud is permanent and while you believe that you have deleted the content, it most likely exists some where and is accessible by your employer.  You are taking a huge risk when discussing your place to bring a claim against the employer in company email or even in private emails on company devices.  You could be exposing important trial/case strategy and breaking your attorney client privilege.  And as a practical matter, the best practice is to ensure that your personal and work lives remain separate, thereby avoiding the abuse of company property.

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