Hamilton Law Firm PCFindLaw IM Template2024-03-18T14:18:19Zhttps://www.ayeshahamiltonlaw.com/feed/atom/WordPress/wp-content/uploads/sites/1502417/2021/08/cropped-Hamilton-Site-Icon-min-32x32.jpgby ayeshahamiltonhttps://www.ayeshahamiltonlaw.com/?p=493342024-03-01T19:26:39Z2024-03-01T19:26:39ZNavigating the aftermath of a Reduction in Force (RIF) can be daunting for employees who find themselves suddenly without a job. What's even more complex is understanding whether this termination, mainly when you were on leave, could actually be considered wrongful termination.
For legal practitioners specializing in employment law, HR professionals, and business owners, the intricacies of RIFs and wrongful terminations demand a detailed examination.This blog post addresses this subtle issue and provides insights that could shape your approach to such terminations, especially when individuals are on leave as defined by theFamily and Medical Leave Act (FMLA). We will explore the legal complexities of RIF-related terminations when an employee is on FMLA leave and provide pivotal information for assessing the fairness of a termination.
Wrongful Termination in the Context of RIF
Before we discuss the nuances of wrongful termination for those on leave during an RIF, it's essential to understand the concept of wrongful termination in the broader RIF context. Wrongful termination, in the simplest terms, occurs when an employee is fired for reasons that violate the law or breach a contract, as defined by federal and state laws.In the case of RIF, terminations are often legally justifiable if they are part of a genuine reduction in the workforce, typically due to economic conditions or a company's strategic changes. However, the key here is 'genuine.' If the RIF is used as a cover for discrimination or the dismissal of employees for invalid reasons, it could merit a classification as wrongful termination.
Legal Requirements and RIF Non-Discrimination
Several reductions in forcelegal requirements must be met for an RIF to be considered non-discriminatory. Generally, RIFs should be based on unbiased and quantifiable criteria such as an employee's seniority or merit-based performance reviews.TheEqual Employment Opportunity Commission (EEOC) states that employment decisions during an RIF must not be influenced by an employee's protected status, which includes their disability. If FMLA-covered leave constitutes a factor in the employee selection process, and the RIF includes employees on leave disproportionately, there could be grounds for wrongful termination.The FMLA regulations clearly state that an employee's status on FMLA leave must not be considered a negative factor in employment decisions, including reduction in force requirements. In fact, any issue of retaliation or leave being held against an employee can be considered a violation of the law. Similarly, employers cannot use the cover of a reduction in force (RIF) to terminate someone who has engaged in whistleblower-protected activity.To guarantee compliance with FMLA and legal regulations, employers must ensure that an employee's performance, potential placement in an RIF, or any other employment decisions are not influenced by their use of or request for FMLA leave or participation in whistleblowing activity.
Seeking Legal Advice
Individuals affected by RIF terminations, particularly those on leave, should seek legal counsel to evaluate the circumstances and potential claims of wrongful termination. Wrongful employment termination lawyers can provide the necessary guidance and next steps to pursue a fair resolution, which could include reinstatement, compensation, or other remedies.Conversely, for employers, ensuring RIFs are conducted equitably and lawfully can mitigate the risk of facing costly wrongful termination claims.In conclusion, wrongful termination is a serious issue. When the complexities of RIFs intersect with protected leave, the need for adherence to employment laws is more critical than ever. Whether you're an employee navigating a termination or an employer looking to secure operations within legal boundaries, staying informed and taking proactive steps is the hallmark of responsible and ethical employment practices.If you believe your RIF termination was wrongful, it's time to engage with a wrongful termination lawyer and protect your rights. After all, job security should not be left on the sidelines of an illness or family emergency.We're here for you if you're looking for wrongful termination lawyers. Contact our team at Hamilton Law Firm today for a consultation and find out how we can help. Let us be your partner in the fight against wrongful termination.]]>by ayeshahamiltonhttps://www.ayeshahamiltonlaw.com/?p=493232024-02-23T19:04:58Z2024-02-23T19:04:58ZIf you have been terminated from your company due to layoffs or possible discrimination, you may have received a severance package. While obtaining a financial cushion may sound appealing, remember that a severance agreement is a legal contract. As with any contract, it must be carefully reviewed to ensure that it serves your best interests.As employee lawyers, we often see cases in which employees unintentionally give up significant rights by consenting to unreasonable terms in a severance agreement. Severance agreements can offer financial security during transitions, but they may also contain clauses detrimental to your career trajectory.This article goes over some of the biggest red flags to look for in a severance agreement, as well as scenarios where signing one may not make sense for an employee.
Red Flags in the Severance Agreement
Several red flags may indicate that a severance agreement is not in your best interests. Here are a few to watch out for:
Non-Competes and Restrictive Clauses
One of the biggest things to be wary of in a severance agreement is restrictive covenants such as non-compete clauses.Non-compete clauses may have rigid restrictions that prohibit you from working for a competitor or launching a similar business. These constraints may prevent you from working in your career field for a lengthy period, causing financial problems or career derailment, which can be detrimental to your profession. It’s essential to thoroughly evaluate these clauses and consider their potential long-term impact before agreeing to them.
Unclear and Unambiguous Language
If the language in the agreement is confusing, it may result in misunderstandings or unintended breaches of contract. If you accidentally break such a contract, your previous employer will find a way to sue you, leaving you struggling with a legal battle you did not see coming. Therefore, it is critical to obtain clarification on any terms or restrictions that seem ambiguous.
Unreasonable Confidentiality Provisions
While confidentiality clauses are typical in severance agreements, they should not limit your rights to disclose conditions of your employment or circumstances surrounding your termination, particularly if there are allegations of misbehavior or discrimination.
Limited Release of Claims
The release of claims portion of a severance agreement often requires you to forgo your right to sue the employer in exchange for obtaining severance money. However, if the release is too broad, you may give up key legal rights without fully comprehending the consequences.
Pressure to Sign Quickly
If you are pressed to sign the agreement without having enough time to understand and consider its provisions, it may suggest that the employer is attempting to take advantage of you. Before making a choice, thoroughly analyze the agreement and, if required, get legal advice. If you are over the age of 40, your employer is required to give you at least 21 days to consider your options and after you sign the agreement, you have a 7-day right to revoke your signature.
Insufficient Severance Pay
The amount of severance compensation granted should be fair and reasonable based on your years of employment, level of responsibility, and the circumstances surrounding your termination. If the severance money is insufficient, you can negotiate a better deal.
Should I Sign a Severance Agreement?
While severance agreements can offer financial security, signing one shouldn't feel like selling your soul. Remember that it's not mandatory - you have the right to negotiate the terms or decline the offer entirely.When presented with a severance package, it is important to seek advice from an employment lawyer. The Employment lawyers at Hamilton Law Firm PC understand New Jersey law as it relates to state severance agreement regulations and can ensure you do not lose your opportunity to seek reparation.Seek legal counsel from an employment lawyer who can help you understand the agreement's implications and assess its fairness. Don't be afraid to walk away if the terms are unfavorable - do not feel pressured to sign just because it's presented as the only option.Signing a severance agreement may not make financial or legal sense in some scenarios. If a severance agreement provides no additional pay or benefits beyond what you are already owed, such as unpaid wages, there is no reason to release legal claims.If you were terminated in violation of laws safeguarding your rights, such as the NJ Law Against Discrimination, the Conscientious Employee Protection Act, or various federal laws like the Americans With Disabilities Act or FMLA or anti-discrimination regulations, signing a release of claims may waive a potential lawsuit. Therefore, it is preferable not to sign until you have spoken with a lawyer.Ultimately, a decision to sign a severance agreement should be based on knowledge, not desperation. By understanding the potential pitfalls and your legal options, you can make an informed choice that protects your future career and financial well-being. Consulting with an experienced employment lawyer at Hamilton Law Firm is advisable before agreeing to release claims. Contact us to schedule a consultation.]]>by ayeshahamiltonhttps://www.ayeshahamiltonlaw.com/?p=493152024-02-09T16:08:52Z2024-02-09T16:08:52ZAn LTIP, or Long-Term Incentive Plan, is a type of executive compensation package that is designed to reward senior executives for their long-term performance and commitment to the company and to encourage them to stay committed to the employer. Unlike other forms of compensation, such as base salary or annual bonuses, LTIPs are focused on long-term goals and are usually tied to the company's stock price. In this guide, we will take a closer look at LTIPs and how they work, specifically for senior executives.
What is an LTIP?
An LTIP is a type of incentive plan that offers long-term rewards to executives based on the performance of the company's stock. This means that as the stock price rises, so does the value of the executive's compensation. The goal of an LTIP is to align the interests of the executive with those of the company's shareholders, as both parties benefit from a rise in stock price. The LTIP usually vests over a period of years, encouraging the employee to stay with the company until the full LTIP has vested. Often annual performance rewards may be granted as LTIPs which vest over the next 3-5 years.Key takeaway: LTIPs are designed to reward long-term performance and align the interests of the executive with those of shareholders.
Types of LTIPs
There are several types of LTIPs that companies may offer to their senior executives. The most common ones include:
Stock Options: This type of LTIP allows executives to purchase company stock at a predetermined price, known as the "strike price," in the future. If the stock price rises above the strike price, executives can exercise their vested options and sell the stock for a profit.
Performance Shares: With performance shares, executives receive actual company stock based on certain performance criteria, such as revenue growth or earnings per share.
Restricted Stock Units (RSUs): RSUs are similar to performance shares, but executives do not receive the stock until a vesting period has passed. This means that they cannot sell or transfer the stock until a specific date or milestone is reached and may be subject to certain black out periods.
Key takeaway: The three most common types of LTIPs are stock options, performance shares, and restricted stock units (RSUs).
Benefits of LTIPs for Senior Executives
LTIPs offer several benefits to senior executives, including:
Alignment of Interests: As mentioned earlier, LTIPs align the interests of the executive with those of shareholders. This encourages executives to make decisions that are in the best interest of the company and its long-term success and to remain committed to the company for a long period. This has the potential to increase your satisfaction with your job.
Incentives for Special Skills: Senior executives with special skills or best-in-class talent can receive LTIP benefits
Tax Benefits: Depending on the structure of the LTIP, there may be tax benefits for both the executive and the company.
Key takeaway: LTIPs offer several benefits to senior executives, including alignment of interests to raise your job satisfaction, incentives for special skills, and potential tax benefits.
When Do Workers Earn Long-Term Incentive Plan Benefits?
Workers earn LTIP benefits at different times depending on the structure of the plan. For stock options, executives can only exercise their options once they have vested, which means they have met certain conditions or milestones set by the company. Performance shares and RSUs also typically have a vesting period before executives can receive the stock.Key takeaway: The timing of when workers earn LTIP benefits depends on the structure of the plan.
Considerations for Employees Considering Changing Employment
When considering a change in employment, employees should consider the following:
Take a look at your LTIP plan to ensure you thoroughly understand its terms and conditions.
Make sure you know how much of the LTIP is vested - what remains unvested will most likely be lost.
Consider whether there are any grounds to negotiate a buyout/payout of the unvested LTIP.
Key takeaway: When contemplating a job switch, employees must review their LTIP plan, understand its terms, assess vested portions to avoid potential losses, and explore negotiation avenues for a buyout or payout of unvested LTIP.
Consulting an Executive Compensation Attorney
The Hamilton Law Firm LLC, has knowledgeable attorneys who can assist with evaluating your options under the LTIP as you decide your next steps. You have worked hard for the LTIP grant and should minimize the loss of that benefit. Call Hamilton Law Firm today to schedule a consultation to discuss effectively exiting from a company without losing your full LTIP benefit.
The Bottom Line
LTIPs allow senior executives to reap the benefits of additional financial assets including stock options and performance shares. If you are a senior executive considering an LTIP as part of your compensation package, it is important to consult with an experienced executive compensation lawyer to ensure that you fully understand the terms and potential tax implications. And, importantly, if you are a senior executive who could lose their full LTIP benefit when exiting the company, you’ll need to have an executive compensation lawyer to ensure an effective strategy.]]>On Behalf of Hamilton Law Firm PChttps://www.ayeshahamiltonlaw.com/?p=493142024-02-06T00:28:38Z2024-02-06T00:28:38ZA territory expansion
Particularly when the franchisor has only recently begun offering franchise opportunities in a region, people may be able to revisit their original territory protection agreement and expand the area in which they intend to operate. They can then invest in additional locations within that territory. Territory expansion could occur a little bit at a time as a franchisee earns income or brings in new investors. Territory expansions may not be the most realistic option for a well-established brand with numerous other franchise locations nearby.
A multi-unit expansion agreement
Franchisors typically work with franchisees who desire a single location. Most of the requirements for entering a franchise agreement assume that the franchisee will run a single business. However, many franchisors also agree to multi-unit expansions. Such agreements could be a viable solution for a franchisee who has achieved success with their early operations. Renegotiating the agreement with the franchisor to expand to additional locations could be a smart decision. However, such agreements often require that someone commit to multiple new units at one time or renegotiate repeatedly as the business develops.
There are drawbacks and benefits to both systems depending on someone's goals and how successful their early operations at one location have proven to be. Considering different expansion opportunities can help a franchisee potentially multiply the success they have already achieved.]]>by ayeshahamiltonhttps://www.ayeshahamiltonlaw.com/?p=492632024-01-25T16:52:11Z2024-01-23T16:28:22ZUnderstanding the New Guidance: Are You Misclassifying Your Workers?The U.S. Department of Labor issued new guidance related to independent contractors. Their goal is to ensure that people who should be considered employees, with all of the benefits employees are entitled to, should not be labeled as independent contractors. Misclassification of status as an independent contractor could mean that some people are not receiving the benefits they should be and are not being paid minimum wage or overtime pay – leading to costly fines for employers.
The New Rule
This recent rule overturns the 2021 Independent Contractor Rule, aiming to align classifications with judicial precedent and minimize the risk of misclassification. Employers should note the return to a multifactor analysis for determining worker status under the Fair Labor Standards Act. Factors such as opportunity for profit or loss, investments, work relationship permanence, control, relevance to the employer's business, and worker's skill and initiative will be assessed without predetermined weights. This shift prioritizes clarity, and compliance, and most importantly, protects employers from misclassification pitfalls.
What You Need to Know If You Work with Independent Contractors
Employers must understand the implications of this new law. The new rule, which is called the Employee or Independent Contractor Classification Under the Fair Labor Standards Act, aims to protect employees who should be treated as employees and not independent contractors.The Fair Labor Standards Act requires that employees be treated fairly, specifically in the areas of minimum age and overtime pay. The belief is that many people who should be employees and receive these rights are not getting them.
Determining Employee and Independent Contractor Status
There are six qualifications that the Department of Labor now requires to determine if a person should truly be an independent contractor or an employee. Consider these key factors:
The opportunity for profit or loss the worker may have
The financial state and nature of the resources the worker has put into the job
The degree of permanence of the work relationship
The amount of control the employer has over the worker’s performance, schedule, and overall work
Whether the work being done is essential to the company’s business
Worker’s skill and initiative
While this new rule aims to provide clarity, there is still quite a bit of uncertainty. However, if a person is mostly controlled by and supporting an employer, they may be an employee.That gives the employee several rights, including the right to overtime pay and to earn at least minimum wage. It also means that the employee's wages should have income taxes and Social Security taxes withheld. Employers must follow all employee-related tax withholdings or face penalties.
What Should Employers Do?
The bottom line is there is still a fine line between employee and independent contractor classification, and the penalties for getting it wrong can be costly to employers. The misclassification of employees as independent contractors could lead to fines and penalties. For this reason, employers should meet with their legal team to ensure they fully understand how their employees and workers should be classified. Our employment law attorneys can offer guidance to employers to ensure you are correctly classifying your team members.
Schedule a Consultation with Our Employer Attorney Now
Our employment lawyer serving Mercer County at Hamilton Law Firm, P.C., is here to help you. As a lawyer for employers, let us be your legal advocate to protect your company from claims of misclassification. Contact us now for a consultation by calling 609-945-7310.]]>by ayeshahamiltonhttps://www.ayeshahamiltonlaw.com/?p=492582024-01-29T20:24:33Z2023-12-19T19:32:53ZIn New Jersey, non-compete agreements have been a common practice among employers to protect their sensitive business information, such as customer lists and trade secrets, from being shared with competitors. These agreements, when employees sign them, act as a legal barrier to prevent them from engaging in competitive activities immediately after leaving their employment.The enforceability of these agreements, a key aspect of New Jersey Non-compete Law, hinges on a critical balance. They must be reasonable in terms of scope, duration, and geographic reach. This reasonableness is determined through careful, fact-sensitive analysis by the courts, ensuring that the agreements don't overreach and unfairly restrict an employee's future employment opportunities while still safeguarding the legitimate interests of the employer.In New Jersey, the status quo of the non-compete agreement is facing potential changes. Recent legislative proposals aim to introduce more stringent rules for their enforceability, reflecting a growing trend towards balancing employee mobility with business protection. This shift marks a significant moment in the state's approach to employment contracts.
Proposed New Jersey Legislation
As an employee in New Jersey, it's crucial to stay informed about the proposed Non-Compete Law New Jersey looks to implement, specifically regarding non-compete agreements, as these changes could significantly impact your employment contract. TheNew Jersey Assembly Bill A3715 is proposing several notable revisions to the enforceability of non-compete clauses:Scope of Unenforceability: The bill seeks to render non-compete clauses unenforceable against various groups, including independent contractors, employees laid off or terminated for reasons other than misconduct, low-wage employees, student interns, apprentices, employees under the age of 18, and those whose service period is less than a year.Duration and Geographic Limitation: The non-compete period would be limited to a maximum of 12 months from the employee’s termination date, and the geographic limitation would be restricted to areas where the employee had a material presence or influence in the last two years prior to termination.Disclosure and Notification Requirements: Employers would need to disclose the terms of the non-compete agreement in writing at the time of the job offer or at least 30 days before the commencement of employment. Additionally, they must notify the employee in writing of their intent to enforce the non-compete agreement within 10 days of the employee’s termination.Compensation During Non-Compete Period: Significantly, the employer would be required to pay the employee 100% of their pay and continue their benefits during the post-employment period in which the non-compete clause is effective.Specific Cause of Action for Employees: The bill introduces a specific cause of action that allows employees to sue employers who violate these requirements, potentially leading to compensation for lost wages, damages, and attorneys' fees, with liquidated damages of up to $10,000.Restriction on Choice-of-Law Provisions: The bill also aims to restrict choice-of-law provisions in non-compete agreements. If an employee is a New Jersey resident at the time of termination and has been for at least thirty days immediately prior to termination, the non-compete agreement cannot designate a foreign state's law as governing.It's important to note that while this legislation proposes significant changes, it is subject to revisions as it progresses through the legislative process and does not apply retroactively. These proposed changes, especially in terms of compensation during the non-compete period and restrictions on enforceability, could set a precedent that other states might follow.
Overview of the FTC's Proposed Rule
The Federal Trade Commission (FTC) hasproposed a new rule that would effectively prohibit employers from imposing non-compete clauses on their workers. This move is seen as a way to prevent practices that suppress wages, hinder innovation, and limit opportunities for entrepreneurs. The proposed rule is broad and covers not only employees but also independent contractors, interns, and volunteers.It aims to restrict any contractual terms that prevent a worker from seeking or accepting employment with another person or operating a business, after the conclusion of their employment with the current employer.There are a few exceptions to this proposed ban. Notably, non-compete clauses related to the sale of a business would still be allowed under certain conditions, such as when the seller has a substantial ownership interest in the business entity being sold. Also, non-compete agreements between franchisees and franchisors are subject to exceptions.
What Does This Mean for Executives?
The New Jersey Assembly Bill A3715 introduces several other significant changes that would affect executives.One major change is the introduction of a de facto "garden leave" provision. This mandates post-employment pay, which obliges an employer to pay the full salary and benefits of a departing employee during the entire non-compete period, even if the employee starts working elsewhere. This differs from traditional garden leave, where an employee is still technically employed but relieved of duties. The bill's requirement is more stringent, as the employee is completely terminated from the company yet still receives payment.Another important aspect of the bill is its impact on geographic restrictions. The bill prevents an employer from prohibiting an employee fromseeking employment in other states, creating a loophole for employees working near state borders, such as those in Jersey City. Employees could potentially work for a competitor just across the state line in New York City while still being restricted from similar competition within New Jersey.The bill also curtails the scope of non-solicitation provisions. It prohibits employers from preventing an employee from working with the employer's customers or clients as long as the employee does not initiate or solicit those customers. This provision could enable employees with established customer relationships to continue working with those customers.
Are Non-Competes Enforceable? A Guide for New Jersey
New Jersey's non-compete law is undergoing significant changes with proposed legislation like Assembly Bill A3715. These changes aim to balance employee mobility with business protection, introducing restrictions on enforceability, mandatory compensation, and legal remedies for employees. Alongside the FTC's proposed nationwide ban, these developments represent a shift towards fairer employment practices, impacting executives and employees alike.Need to demystify non-compete law in New Jersey? Hamilton Law Firm can help. Contact us for a consultation.]]>by ayeshahamiltonhttps://www.ayeshahamiltonlaw.com/?p=492562024-01-29T06:36:25Z2023-12-05T15:44:57ZThis piece from Ayesha Hamilton appeared in NJSBA’s December 2023 issue of New Jersey Lawyer.As a plaintiff’s attorney, you are often retained before the employee is terminated. In most instances, you work in the background, guiding the employees as they navigate a difficult workplace situation.There may come a point in time when the employee is notified that human resources or an external investigator is going to investigate (a) the claims the employee is raising against a coworker/supervisor; or (b) the employee is notified that they are the target of an investigation for some alleged bad acts. In certain cases, it may be beneficial to notify the investigator that you represent the employee and ask to be an observer to your client’s interview. While investigators used to refuse any counsel participation, the tide is changing as they recognize the value to both sides.On the lucky few occasions when an employee’s counsel can participate in a pre-termination investigation, the involvement is limited. However, there is great value to both the employee and employer in allowing employee’s counsel to observe the investigation interview. Recognize that discovery starts in this investigation phase and you can learn a lot about your case, your client and the company from the investigation even though you will never say a word.Typically, the investigation is going to be about an issue that the employee has raised with company human resources about a fact pattern that they are experiencing in the workplace or maybe about something that they are accused of doing. In either instance, the employee has never experienced anything like this before and is ill-equipped to participate in the investigation effectively. Representing an employee, regardless of the fact pattern, requires some patience and empathy. Whether the employee is at fault or there is something else going on, i.e. discrimination, harassment, or retaliation, the employee’s counsel must begin with an explanation about what the employee should expect during the investigation. Demystifying the process will go a long way to helping your client cope with the stress and anxiety that they are feeling. Take them through a step-by-step description of how the meeting is likely to go. Review “deposition” type instructions such as making sure they understand that even though they are not being sworn in, they must tell the truth. Particularly if the investigation relates to a claim that the employee has raised, the employee must be open and forthright about the basis for their claim, the facts, witnesses and documents that support their assertions.Theoretically, this will allow a truly neutral investigator to go back to the company/supervisor/alleged bad actor to ask for more information about their side of the story. The employee must also understand what is happening to them. This means you must have a detailed understanding of the facts and claims being considered by the investigator as you prepare for the interview. In most instances, especially where the investigator is focusing on allegations raised against your client, you will have very little information about the specifics of the complaint. This is going to require a detailed, in-depth understanding of what has been happening to the client in the workplace to allow you to anticipate the acts that the client is being accused of. In some circumstances, your client is going to have to reveal sensitive information about themselves and the fact pattern, fearing judgment and disapproval from you. You will need to build trust with this client to ensure that they are telling you the good, bad and the ugly so that you can appropriately prepare them for what lies ahead.Preparing the employee for an investigation interview is critical. Your client must understand that their recollection of the details of key fact patterns, which may have taken place many months ago, is important. While they may not know the specific questions being asked of them, they will have a general idea and recollection of points of conflict and must be prepared to answer questions regarding those instances. The employee should ask the investigator about what they can do to prepare, i.e. review documents, emails and produce information to the investigator. In most instances, the investigator, with full access to the company information, is going to ask about what the employee has in their possession and direct the employee not to take or do anything else to prepare.
Top 5 Interview Preparation Tips
Employee’s Counsel’s Role: Unlike a deposition, objections for relevance, scope, form of questions etc. are not permissible and you will be little more than a fly on the wall. Make sure the investigator knows that you have every intention of respecting the process and will not interfere with the questioning. Similarly, make sure that your client understands this as well. Unlike what they see on TV, there will be no fireworks and “a-ha” moments but rather, quiet strategic decisions that you and the client will make following the interview.
Employee’s Role in the Investigation: Your client must understand the importance and impact of the investigation. In most instances, they are the target of the investigation, which is likely to culminate in a termination or in a finding that the claims that they have raised against a supervisor or the company are without merit. The employee must understand the lay of the land to be an effective participant in the investigation and to properly protect themselves against false or misleading allegations being raised against them. Don’t forget that they are new to the process and are terrified that they are going to be fired. They must understand that they must tell the investigator the full story so that the investigator is armed with all of the details necessary to conduct a fair and balanced investigation.
The Investigator: Often the investigator is an internal human resources employee. From the employee’s perspective, this person is an adversary; their role is to determine the extent of the company’s exposure/risk by ascertaining how much the employee knows about what is happening, to discover all bad facts that will hurt their client (the company), and to assess the employee’s credibility and ability to participate in an adversarial proceeding. Many investigations may result in the employee’s termination or in a finding that the employee’s claims against the company are without basis. Investigators notes, recordings and reports are discoverable under Payton v. New Jersey Turnpike Authority and should be requested during discovery. In Payton, the Appellate Division reversed the trial court, finding that the plaintiff was entitled to see the investigative reports and notes relating to an internal investigation to assess the company’s response to the internal complaint. While you can discover the investigator’s notes and report later in litigation, you should take detailed notes of the interview so that you can (a) compare it to the investigator’s notes to verify accuracy and ensure that topics being referenced in the notes and report were actually covered in the investigative interview; and (b) review the discussion with your client immediately following the conclusion of the interview.
Document Review: The employee should ask the investigator how they should prepare for the interview; i.e. should they download company documents to show to the investigator, should they review anything ahead of time, etc. In some instances, the employee may not know the details of the complaints raised against them, making it impossible to effectively prepare. The investigator may also ask about fact patterns that may have taken place many months ago, making the process unfair if the employee is not able to review documents or know about the fact pattern ahead of time. However, employees must be very careful and ask for permission before accessing, downloading and printing any company information, especially confidential or proprietary documentation, as that may result in grounds for termination. While employees are generally just trying to be helpful and informative, they may inadvertently commit some act which may give the employer grounds for termination. The employee must understand that this is a minefield and that they must follow the investigator’s instructions regarding how to prepare for the interview.
The Debrief: The debrief is as critical as the preparation phase and should not be taken lightly, even if you were only retained to guide the client through the investigation. In listening to the questions being asked by the investigator and your client’s responses, you may realize that the fact pattern presented to you by the employee has some significant gaps. Similarly, you will get a preview into the employer’s arguments of what constitutes a “legitimate business reason” for the termination under the burden shifting analysis. The investigator’s questions, especially surprising ones, should prompt a more in-depth discussion with your client to understand the scope of the fact pattern and its role in the client’s performance, allegations etc. While employees often believe, and will tell you, that they have a “slam dunk” case, it is your job to educate them on the law and how their facts fit in. Post interview, the picture will be much clearer than it was during the preparation phase and you must discuss the implications of the employer’s arguments.
Navigating Perceptions and Value in Investigations
In the employee’s perspective, the outcome of the investigation is already decided and the company is merely looking for justification for the eventual termination. The employee believes that the company almost always takes the bad actor’s side and hence, since the investigators are paid by the company, there is little or no chance that the investigation will be neutral. However, employees must also recognize that their participation in the investigation is necessary and a required part of their job, especially if they initiated the complaint. As an attorney, the greatest value of being allowed to observe an investigation interview is the opportunity to watch your client in an adversarial situation before you are too far into the case. By listening to their answers, watching their demeanor, and assessing their credibility, you have a glimpse into how they are likely to perform during litigation. Doing this credibility assessment before litigation is likely to allow both sides to take a more balanced view of the case. In addition to vetting your own client, you have an opportunity to vet the theory of the case. Often, plaintiff’s attorneys only have meaningful insight into one side of the story, i.e. their client’s. Listening to the investigator’s questions will guide you some insight into a few of the employer’s arguments that you are likely to see in litigation.While it seems counterintuitive, investigators should always allow employees to have counsel present during the investigation interview. The employee is likely to be calmer, more comfortable, and less confused, leading to more complete and thorough discussion. Counsel involvement early in the process may also have the effect of allowing cooler heads to prevail and to head off a potentially lengthy and uncomfortable litigation. Experienced counsel will know that they have a limited role in the interview and will respect the process, and experienced investigators will recognize that there is nothing to fear from allowing counsel to observe. ]]>by ayeshahamiltonhttps://www.ayeshahamiltonlaw.com/?p=492542024-01-25T16:53:46Z2023-11-28T20:53:37ZAs an executive, you hold significant responsibility for your company, your employees, and your customers or clients-- and your compensation package should reflect that.
If you were recently hired for an executive role and need help negotiating your executive compensation and benefits package, this guide is for you. Find seven of the most effective tips and strategies you can utilize below.
1. Identify Your Target Salary Range
Before you begin actively negotiating your executive compensation package, take some time to figure out your target base salary range. What is the absolute minimum you’re willing to accept, and what’s an ideal upper number you’d be happy to receive?When identifying your target range, do some research to find out what other executives in your industry are earning. Consider the cost of living in your city and state as well to ensure you make enough to meet your basic needs, adequately support your family, etc.
2. Consider Necessary Extras
Your salary is only one part of your executive compensation package. Plenty of other elements comprise it, too, including company stock options, a business vehicle, insurance packages, loan forgiveness, relocation packages and a severance package should the company decide to terminate your employment. Some companies will offer assistance with listing and selling your home as a part of a relocation package while others will provide a lump sum payment to assist with your moving expenses. You may also be able to negotiate stock or options as a part of your compensation package along with the terms of when such options will vest or accelerate at separation. Pay close attention to the type of company you are joining to determine whether a change in control package would be appropriate and what circumstances would trigger that change in control. Think carefully about the must-haves that you want included in your package -- and get specific about what you actually want and need. The more specific you can be at this point, the easier it will be to ensure you’re being treated fairly later.
3. Wait to Discuss Your Salary Requirements
It might be tempting to jump straight into your salary requirements during the interview process. However, it’s best to wait to discuss those requirements until after you have A) thoroughly explained what you bring to the table and why you’re qualified for the job and B) actually received a job offer.There will be plenty of time to negotiate your compensation and benefits package. During the interview, the main focus should be on why the company ought to choose you over the other candidates.
4. Wait for the Company’s Offer
Following up on Tip #3, wait for the company’s offer before you begin the negotiation process. If you wait for their offer, you have more information to work with.For example, you might find that the company’s starting salary offer is far higher than the upper limit of your preferred salary range but that the other benefits you are looking for are missing This gives you room to negotiate even though the base salary is more than your expected.If you didn’t wait for this information to come through, you might end up asking for far less than the company was willing to pay you -- and you likely would have gotten that salary, meaning you’d be paid far less than you deserved.
5. Highlight and Quantify the Value You Provide
During the negotiation process, look for opportunities to highlight and quantify the value you bring to the company. For example, you might reference past successes in other roles and how much money you saved a previous employer, the specific percentage by which you raised revenue, etc.When you quantify your value in this way, it’s easier for the hiring committee to see why they should pay you the amount you’re requesting.
6. Request a Copy of the Plan
Always request a copy of the compensation and benefits plan and review it before signing. This review helps you ensure you know exactly what you’re agreeing to, gives you a chance to correct any mistakes, and will save you from unpleasant surprises later on.
7. Work with an Executive Compensation Lawyer
Remember that you don’t have to navigate the executive compensation package negotiation process by yourself. Consider hiring an executive compensation attorney to assist you.Working with an executive compensation attorney provides you with extra support during this potentially difficult and time-consuming process. An attorney will also help you understand all the elements of your compensation package and ensure you and the company come to an agreement that is mutually beneficial.
Final Thoughts
Negotiating executive compensation packages can be overwhelming and intimidating. Follow the tips outlined in this guide, though, and you’ll have an easier time asking for what you’re worth and setting yourself up to be paid fairly.Remember that it’s helpful to have professional support during this process guiding you from the background on each decision and negotiation. If you’re unsure of where to begin or just need additional assistance, consider partnering with an executive compensation lawyer during negotiations.The Hamilton Law Firm can help in these matters. Please reach out to schedule an executive compensation consultation.]]>On Behalf of Hamilton Law Firm PChttps://www.ayeshahamiltonlaw.com/?p=492352023-11-10T13:22:15Z2023-11-10T13:22:15ZWhat constitutes unfair trade practices?
There are a variety of different types of behavior that could constitute unfair and possibly illegal competition or trade practices. Perhaps the best-known is the attempt to establish a monopoly. When two or more businesses merge to take over the local market, they can make it impossible for others to compete. Similarly, if one business consistently acquires any competition in the market by purchasing competitors, it may run afoul of antitrust laws.
Price fixing conspiracies are another form of unfair trade practices. Two or more competitors may agree to set their prices unreasonably low in an attempt to push another competitor or multiple other businesses out of the market. After those other businesses close or move elsewhere, the businesses can then increase their prices as they see fit.
Corporate espionage is another form of unfair competition, as is online defamation intended to sway consumers against a specific business. Inaccurate or misleading advertising, intellectual property infringement and a variety of other trade practices could constitute actionable unfair competition in the United States.
Unfair trade practices harm both companies and members of the general public. When there is evidence of this kind of misconduct, it may be necessary to take legal action. Initiating a lawsuit or notifying regulatory authorities could help executives and business owners fight back against unfair trade practices that may harm the organizations they operate.]]>by ayeshahamiltonhttps://www.ayeshahamiltonlaw.com/?p=492312023-11-08T19:35:25Z2023-11-08T19:35:25ZWhat is Arbitration?
The general rule of thumb for employees is “Don’t sign an agreement with an arbitration clause in it.”Why? Arbitrations are proceedings that take place in private, outside a courtroom, without a jury and with very few procedural rules. An arbitrator is typically a retired judge or an attorney at the end of their career who decides how the proceedings will run, and who issues an ultimate decision on whether you win or lose your case. Arbitration filing fees are extremely expensive and thereafter, arbitrators bill by the hour, leaving the ultimate cost of arbitration in the tens of thousands or even more. As compared, a court filing fee is not likely to exceed a few hundred dollars.Our courts require arbitration clauses to contain some very specific language to be enforceable. Yet, our court dockets are overwhelmed, and where the arbitration clause even presents a colorable argument of validity, it is likely to be enforced.
5 Arbitration Considerations for You and Your Attorney
If you happen to find yourself with an enforceable arbitration clause, here are some things your attorney will discuss with you:
Who is the right person to pick as arbitrator? Through most arbitration venues, each side is provided with a list of 10 names from which the parties are asked to pick 3-5 and rank them in order of preference. This is an important step and requires a deep dive on each name to ensure that you are getting someone who is the most qualified and “neutral” and perhaps, even most favorable to your issues.
What are the limitations on discovery? Most arbitration proceedings do not follow the local court rules and so the party compelling arbitration is able to play a lot of discovery games during the process. However, at the outset of the matter, your attorney, the arbitrator and opposing counsel will need to define the rules of the road, especially if there are discovery issues related to electronically stored information.
The benefits of arbitration: The arbitration process moves quicker than the courts, which tend to be overburdened by cases. Arbitrators are usually handling a smaller docket of cases and can devote the time to case management and issues as they arise rather than requiring formal motions to be filed. However, make sure that opposing parties are not taking advantage of this speed to prevent you from having the full scope of information you need to get a fair hearing on the issues.
Educating the arbitrator: Your attorney will not take anything for granted when it comes to educating the arbitrator about the issues and the law. While you may believe that you have selected an arbitrator who is experienced in employment law, they may not be experienced in specific nuances of the issues you are raising in your case.
Confirming the award: Having gone through a private arbitration process, and won, your attorney will now need to docket that award in the Superior Court of New Jersey to confirm it as a judgment and to collect on that judgment. This is an additional step that you have to take when coming from arbitration. Be prepared that this provides yet another opportunity for defendants to argue that the arbitration process was unfair or that the arbitrator has committed some egregious error which requires that the award be vacated.
These are just a few of the important milestones that you will encounter in your arbitration process if you are so unlucky as to be stuck with an enforceable arbitration clause.
Picking an Attorney
If you find yourself with an enforceable arbitration clause, you’ll need to enlist the help of a lawyer you can depend on. Hamilton Law Firm is well-versed in the intricacies of arbitration and can ensure you are prepared in these circumstances. Please contact us for a consultation.]]>