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Employment And Severance Scenarios - John J. Tormey
"This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally".

In prior articles I have alluded to the fact that musicians often have “day jobs”. Most intend to abandon these jobs once they get signed to a record contract or otherwise “make it”. But what happens in the meantime? What if a musician works for a company that intends to jettison him or her as an employee, rather than the other way around? This past year has been a particularly bad one, in terms of employee lay-offs. The fact of the matter is, a large proportion of employees misplay the handling of their job exit, if and when it occurs. In the interests of employee empowerment, this article follows.

I suppose the first rule of employee empowerment is fairly pedestrian-sounding, but vitally important. An employee must read and review every document pertaining to his or her job and career, carefully - including my following disclaimer! The employee should secure counsel promptly, if he or she sees any legal issue looming on the horizon which may affect the employee’s career or rights - including legal issues relating to employment and severance. As a law professor of mine used to say, “every deal is different”. What applies in one context may not apply to the next one. The employee must make sure that he or she seeks individualized legal advice as to any important matter pertaining to the employee’s career or rights generally.

There are attorneys who routinely handle “employee-side” legal matters, a number of whom may be able to do so affordably for even a modestly-compensated employee. An employee-side lawyer should be accustomed to representing people who have limited financial resources. And, one should no sooner handle one’s own legal work (assuming one is not a lawyer), than handle one’s own dental or medical needs oneself.

The employee should remember that most employers themselves have in-house or outside attorneys. Often an employee’s securing of his or her own counsel is the only way to equilibrate the proverbial scales of justice, in a severance or other job-related scenario. Exploitative and even abusive treatment of employees is unfortunately rampant, particularly in highly-competitive cities like New York, and in highly-competitive industries like entertainment and media. The good works and lessons taught by historical pro-labor figures like Samuel Gompers should not go for naught. The employee should not look to the employer, or the vicissitudes of chance, to protect the employee and the employee’s own legal rights in the workplace. Rather, the employee should empower himself or herself, and should not be inhibited in seeking out the advice and opinions of those professionals who handle employee-side legal work for a living.

On to the substance and detail.

The employee should never sign any document on-the-spot. The employee should not be bullied into doing so, as a product of fear, or the purposeful manipulation of same by oppressive employers or ex-employers. There are very few situations in life where one truly must sign a document on-the-spot. One of the only valid such situations that I can recall from my own experience, is when an attorney must sign a stipulation on-the-spot before a judge, as the only way to preserve the attorney’s client’s rights. This will likely not be a situation that one will ever have to encounter as an employee or terminated employee.

It is astounding as to how many people make this mistake of “on-the-spot” signing, time and time again, in the workplace and business world generally - even if they know better. The employee should trust his or her own instincts. If it smells bad, it is bad. If anyone - be it a salesman, an agent, or, yes, an employer terminating an employee’s services - presents the employee with a document and tries to pressure the employee to sign that document on-the-spot - the odds are better than 99% that the employer is trying to take advantage of the employee, and trying to force the employee to thoughtlessly relinquish in haste valid and enforceable legal rights that the employee already and otherwise has.

By comparison, what does an attorney do, when given or forwarded a document intended for signature? The attorney will typically indicate to the party who proffers the document for signature: “Thank you - my client and I will review and respond to this document”. Period. If the “proffering” party then says: “Aren’t you or your client going to sign it now?”, the attorney answers with a flat “No”. Although it is possible that the proffering party will thereafter withdraw whatever offer the document contains and take it permanently off-the-table, they typically won’t. And if they do, it probably was not an offer worth taking anyway.

Rather, the protocols of professionalism create an expectation that all parties should be given a reasonable opportunity to review a document, prior to either: (1) signing it as written (an extremely unlikely occurrence, by the way, if a good attorney reviews it for the employee); or else (2) responding to the proposed document with a fax, letter, red-line comparison draft, or mark-up indicating the receiving party’s proposed changes. And, if the proffering party does withdraw the document “since it wasn’t signed on-the-spot”, then they are just being ridiculous and overbearing. The odds are, again, better than 99% that their “non-negotiable” document would have been a legal disaster for the employee to sign as initially proposed.

Some employers even have the unmitigated gall these days, to ask employees to prospectively waive their right to a jury trial in the context of so-called “non-negotiable” employment agreements, as but one egregious example. It is jungle out there. If one is asked to sign a document on-the-spot, it is entirely fair and within one’s rights to say that “I will need to review this document with my attorney”, or “I don’t sign documents of a legal nature without attorney review”. And, if the proferring party disputes the employee’s right to legal representation, perhaps this is someone that the employee doesn’t want in his or her life anyway. This country’s entire legal history was predicated, in substantial part, on the rights of the individual, and the individual’s right to counsel. The framers of the Constitution worked hard. It would be a mistake to let them down now.

The next rule is a corollary to the prohibition on “on-the-spot” signing: The employee should never believe the employer, when the employer offers a “standard” form. If the employee wants to empower himself or herself in the workplace and in the commercial world, what the employee needs to do is repeat the following phrase repeatedly, like a mantra: “There is no such thing as a ‘standard form’. There is no such thing as a ‘standard form’”.

Rather, “standard form” is a mere synonym for “oppressive and one-sided form, that takes advantage of the employee”! The employee should remember that the draftsperson of a so-called “standard form” is probably a fairly predatory-minded employer-side lawyer who is under absolutely no obligation to protect - or indeed even acknowledge or accommodate - the employee’s interests. Indeed, the opposite is true. The employer-counsel’s professional obligation as a member of the Bar is to be a zealous advocate of only their own client’s interests - that is, the employer’s interests only. If the employee signs a document because the other side tells the employee it is a “standard” or “non-negotiable” form, then the employee might as well be walking off the roof of the proverbial building just because the employee was told to do it. The employee should not trust “standard forms”, or those employers who purport to furnish them.

The employee should make sure to have retained copies of every single scrap of paper pertaining to his or her employment relationship with any company. The employee should not trust or rely upon the employer to give the employee copies of - or even access to - those documents and the employee’s human resources file; if and when the employee’s work honeymoon period with the employer ends, or if and when the employee’s services are, or are about to be, terminated. Remember that the Japanese model of “employment for life”, and the antiquarian U.S. model of the gold watch after 40 years of service, just simply do not apply anymore.

Our United States work-force is more mobile and transient than it ever has been. People change jobs all the time; which, by the way, greatly empowers employees to seek out their market-value salary and non-abusive working conditions. The employee should assume that the employee will one day have to depart every job ever taken, no matter how rosy the employment picture of any job looks initially. If the employee stays at that job until retirement, more power to the employee. But the employee should realize that the statistics indicate this would be an extremely unlikely occurrence in this day and age given current job market conditions.

The employee should make sure that his or her exhaustive, fully-complete “job file” is kept at the employee’s home - not in one’s office desk drawer, not in one’s company’s file cabinet - not anywhere near the workplace. It is astonishing as to how many employees fail to do this simple thing. The employee should remember that the old-fashioned paradigm of “two weeks advance notice and severance” is rapidly becoming a vestige of the past. Many employers will now think nothing of having an employee escorted out of the workplace by a human resources rep, or even by security personnel, the day and even moment the employee is terminated.

Why is this happening? Because employers are becoming increasingly afraid of disgruntled employee (or ex-employee) theft of company material, misappropriation of software, and even sabotage and violence in rarer cases. The moral of the story - the employee should keep perfect and thorough contemporaneous documentation of his or her employment file, at home. The employee should save copies of everything - offer letters, acceptance letters, employment contracts, “non-compete” documents, non-disclosure or confidentiality agreements, employee handbooks, time cards or time sheets, performance reviews, expense and reimbursement forms and receipts, insurance and COBRA documents, inter-office memos relating to work and performance, and anything else relating to the employment relationship with the company. The only exception would be, the employee should not remove any material from the workplace which is the employer’s property, or which the employee is contractually or otherwise obligated not to remove from the place of work. This is sometimes a more difficult judgment to make than it sounds, and if ever in doubt - you guessed it - the employee should seek an attorney’s advice prior to any such removal.

The employee should make thoughtful dated written notes to the employee’s own files and keep them at home, anytime any legally-relevant event happens during employ - such as a supervisor expressing either approval or disapproval with one’s work, or a fellow employee making suggestive or harassing comments in one’s presence. These written notes should be reduced to writing privately, immediately after the event occurs, never a day later. These written notes should quote what was said verbatim (yes, using actual quotation marks, and accurately). The employee should not let these notes merely rely on paraphrases. These written notes should be taken home by the employee on the date of the event so recorded, and should be stored securely in the employee’s employment file at home until ever needed. One would be shocked to learn just how many otherwise-valid employee-side legal cases must be wholly abandoned, simply for the employee’s idle failure to make a written verbatim record of important workplace conversations. For legal purposes, the employee must assume that a re-constructive written record made in retrospect the following week instead, or a non-verbatim note, is near-worthless. What the employee wants is what is known as a “contemporaneous written record” - that means, “at the same time as the occurrence of the event itself”. And yes, for most forensic purposes, that also could include a careful verbatim written record made by the employee 5 minutes after the event ends.

Finally, the last rule is a corollary to some of the others mentioned immediately above: The employee should bring or forward a complete photocopy (not originals) of the employment file which the employee kept at home, to the attorney or attorneys that the employee is considering to represent the employee on the negotiation of any exit and severance agreement, or any litigation or proceeding for wrongful termination or otherwise.

The employee should remember that what he or she discloses to an attorney is strictly confidential, even if the employee never ends up retaining that lawyer. This rule of confidentiality is a serious and inviolate rule. That lawyer could lose his or her license to practice law, if he or she ever betrays the employee’s confidences. Accordingly, (after first making sure that the lawyer doesn’t also represent the employer!), the employee should be totally candid and thorough in terms of the facts brought to that lawyer’s attention. The employee should not “screen out” facts that the employee thinks are irrelevant or that the attorney “would never be interested in”. After all, if the employee is not an attorney himself or herself, he or she could be well wrong about this type of conclusion. It is the attorney’s job, not the employee’s, to filter out the irrelevant from the relevant. The employee should give the lawyer all the raw data.

The employee should cover any packet furnished to his or her actual or intended lawyer with a cover letter bearing the legend “Strictly Confidential”, or words to similar effect. That cover letter should include a typewritten or word-processed narrative in the employee’s own words, of all the facts and chronology of the employment matter about which the attorney is being contacted. The employee should not rely upon an oral soliloquy to make his or her point. Rather, the employee should write it all down, in legible font or typeface, before contacting the lawyer. Again, the employee should ensure, prior to divulging these facts to any such attorney, that the attorney does not already represent the employer or any other party closely affiliated with the employer. It is a small world, and the employment law bar is even smaller.

My law practice includes the fields of entertainment and publishing. If you have any questions about copyright law or any other legal issues which affect your career, and require representation, please contact me:

John J. Tormey III, PLLC
217 East 86th Street, PMB 221
New York, NY 10028
(212) 410-4142 (phone)
(212) 410-2380 (fax)

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