Tuesday, March 26, 2013

Before You Sign A Severance Agreement

Bertelson Law Office has a successful history of reviewing, evaluating and strategically negotiating severance agreements, "buy-out packages", executive agreements and non-compete agreements.  We can help you assess whether the package you were offered makes sense considering the specifics of your employment.  

Feel free to contact us if you would like us to review your severance package.

The below is an article written by Donna Ballen taken from the website Aol Jobs:  http://jobs.aol.com/articles/2012/09/13/should-you-sign-that-severance-agreement/

Here are some important things to consider when you are presented with a severance agreement:

Take your time:Because this reader is clearly over 40, he should have been given at least 21 days to review the agreement and take it to a lawyer before he signed. If he wasn't given that time, then any release of age discrimination claims might not be valid. Of course, the agreement probably says he had that much time, and he's acknowledging it if he signed. If you're being pressured to sign before you have a chance to properly review it, I suggest putting your request for more time in writing, by email, fax or some way you have proof you sent it. Put in writing that they have given you a deadline of x-date, that you want to take the agreement to a lawyer, and that you need another week or a few weeks to review it. If they deny the extra time, you now have it in writing.

Limits on your ability to work:Even if you didn't sign a noncompete agreement while you were employed, some employers may try to sneak one into a severance agreement. If you're signing an agreement that you can't work for a competitor for a year or two after you leave, you'd better make sure you're getting enough money to tide you over. Some agreements ask you to affirm you will abide by an existing noncompete agreement. If you sign, you may be giving up some defenses you had to the enforceability of the prior agreement. Be careful, and make sure you can live with any noncompete restrictions before you sign.

Confidentiality:If you are agreeing to keep company information confidential, beware. Some management-side lawyers use provisions like this to say that, if you work for a competitor, you would inevitably have to disclose confidences. In effect, you've signed a noncompete and didn't even know it. I like to insert some language into these provisions saying they aren't intended to be a noncompete agreement.

Release:If you're giving up all the potential claims you have against your employer, you should make sure you understand what you're really giving up. The reader who asked this question mentioned some comments made that indicate he might have an age discrimination claim. If you take your agreement to an employment lawyer, you should discuss any potential claims you have to see if they might give you leverage to negotiate a better agreement. If you were treated differently than others of a different race, age, religion, etc., you might have a discrimination claim. If you were fired right after objecting to an illegal practice, taking Family and Medical Leave or making a worker's compensation claim, you might have a retaliation claim against your employer. These are just some examples of claims you'll be giving up if you sign without understanding your rights.

Mutuality:If you're releasing your employer from potential claims, can they turn around and sue you for something? If you're agreeing not to say negative things about them, are they still able to slam you in references? If the agreement itself is confidential for you, can the employer tell coworkers and potential employers about it? These are some of the provisions I like to insist the employer make mutual. After all, if you have obligations to them after you leave, shouldn't they have similar obligations to you?

My number one rule for signing any agreement is this: make sure you understand it before you sign. When in doubt, have an employment lawyer in your state review and explain it to you and discuss your options. Sure, it will cost some money, but isn't it worth paying to be sure you aren't making a huge mistake in signing?

Wednesday, March 13, 2013

We've Moved Backward in Closing the Gender Wage Gap

From:  Forbes, March 7, 2013
By:  Bryce Colvert

The gender wage gap is a hot topic. So hot that President Obama’s first act when he took office was signing the Lilly Ledbetter Act, which give the victims of pay discrimination more time to file charges against their employers. It even came up during the presidential campaign last year and was pointedly raised during one of the debates.
With all of this attention and even some legislation, you might think that we’re making progress toward closing the gap between men and women’s earnings. You’d be wrong. In fact, a new report from the Institute for Women’s Policy Research out today shows that the gap between median annual earnings for men and women working full time was lower in 2011 than in 2010 – and in fact equal to the gap as it stood in 2009. Median weekly earnings for full-time workers saw a gap of 80.9 percent in 2012, declining more than a whole percentage point since the year before. (Keep in mind all you gender gap naysayers: this is for full-time employees. Factoring in women’s “choices” to go part-time or take time off from their careers would make the gap even larger.)
What’s particularly strange about this is that the wage gap typically narrows during a recession, as Ariane Hegewisch of IWPR told me. “This is because men are more likely to work in jobs with high bonus payments and overtime work; in a recession discretionary payments such as merit pay tend to go down,” and men are the primary recipients of these lavish rewards.
What’s worse, though, is that this latest speed bump is dwarfed by the slowdown in progress since the 1990s, as can be seen in the graph above. As the report notes, “Since 2001 the annual gender earnings gap narrowed by only about one percentage point. In the previous decade, from 1991 to 2000, it closed by almost four, and in the decade prior to that, 1981 to 1990, by over ten percentage points.” Where we were making solid progress toward true gender parity in pay, recent decades have seen it trickle to a slow crawl.
So what’s going on here? No one is quite sure yet why the recent slowdown has occurred. Hegewisch posited that men’s bonuses may be returning to normal, increasing the gap. Another important factor is likely that the public sector has been shedding so many jobs, a place where women hold a large share of employment. The jobs there are also higher paying and tend to employ more educated women – so as they lost those jobs, they brought the average compensation for female workers down with them.
The longer-term path of stagnation that we’ve been on for the past two decades is caused by two factors: women’s earnings going up and men’s earnings stagnating or going down. Women saw a huge boost from doors opening for higher-level jobs thanks to Title IX and more equal access to education and Title VII. Mothers also entered and stayed in jobs more rapidly during that time. At the same time, men’s real wages suffered from the decline in manufacturing and anti-union policies. “Women’s earnings tended to be so low that the only way was up,” Hegewisch summed up.
It’s a complex problem, and so far we’ve tried to address it with minimal solutions. But our efforts aren’t paying off. Women are backsliding.

Thursday, March 7, 2013

FMLA Not Really Working For Many Employees

By Jennifer Ludden, NRP, February 5, 2013

Twenty years after President Bill Clinton signed the Family and Medical Leave Act, workers' rights groups say many employees still must choose between their family or their job.
They're marking the anniversary with calls to expand the law, and for Congress to pass a new one that would provide paid leave.

What Falls Under The FMLA?
FMLA provides up to 12 weeks per year of unpaid leave if an employee has a new baby or a serious illness in the family. But there are a number of restrictions, meaning some 40 percent of the workforce is not eligible.
"It has a very narrow definition of family," Ellen Bravo, of Family Values @ Work, says.
Same-sex partners can't use it to care for each other, and people can't use it to care for a grandparent. Only those who work at least 25 hours a week are eligible, even as an ever growing share of the labor force is part time.
"Many people are [cobbling] together two or three part-time jobs, none of which have enough hours to make them eligible for Family and Medical Leave. So this is a disaster," Bravo says. "We have to bring the rules in line with the realities of the workforce."
Crucially, businesses with fewer than 50 people are also exempt.

Not Eligible For FMLA
"I was shocked to find out that I wasn't eligible for FMLA," says Jeannine Sato, who became pregnant when she was a manager at a North Carolina nonprofit that touted its family-friendliness. She was told to return to work after six weeks or risk losing her job.
"I had a lot of issues with that," she says. "A difficult delivery. I had a colicky baby. My husband was working. It was very stressful, and I left as a result of it."
Ironically, Sato's husband's employer — an even smaller firm — felt so badly for the couple that it voluntarily gave him a month of unpaid leave.
Sato realizes she was still lucky. Today, she works with low-income women who are new mothers.
"I see parents going back to work after one or even two weeks because they have no paid sick [leave], they have no vacation, they're not eligible for FMLA," she says. "Even if they were eligible, they couldn't afford to take the unpaid time off."

FMLA Not For Everyone?
"Employers have constraints on them," says Marc Freedman, the head of labor law policy at the U.S. Chamber of Commerce, which led opposition to the Family and Medical Leave Act.
He says even unpaid leave is too big a burden for many small companies. For larger businesses, he says FMLA works pretty well for new parents, but medical leave can be a nightmare for employers to track.
Freedman says it's especially challenging when workers use it intermittently, with no advance notice.
"It's a ripple effect," he says. "Other people have to cover for them. Customers are left wanting. It can create a lot of problems throughout the workplace."

Taking Days Off
The Society for Human Resource Management says FMLA is consistently the top issue for employers who call its hotline. Among their questions: Which employees are eligible? And which illnesses are "serious health conditions"?
Then there's misuse of the law. Freedman says the leave was deliberately left unpaid to prevent that, and yet "the day of the year when FMLA leave is accessed the most is the day after the Super Bowl."
Still, a new survey by the Labor Department finds the vast majority of employers say it's easy to comply with the law and that misuse is rare.
And if there are some bad-egg workers, the same can also be said for some businesses.

Pushing Through The Pain
"It was described to me as if something really disastrous happened," says Mo Kessler, who used to work at a national grocery chain in Kentucky.
She told her bosses she had endometriosis and suffered excruciating pain a few days each month. But no one ever mentioned that she could use FMLA leave, and, at the time, she didn't know better. Kessler says she was told to push through the pain, or be written up.

"I would try to hide in the back because my face was so pale," she recalls. "I was so visibly sick that I needed to hide away from the customers, to not scare them off!"

With so many gaps and such confusion, the main debate over work and family has moved away from the FMLA and back to the original aim of those who pushed for the law: paid family leave.
Grass-roots organizations have been pushing such measures in states and cities across the country in recent years.

California and New Jersey have both passed a paid family leave insurance program in the past decade, and advocates hope they might be a model for federal legislation. They hope that will happen before another 20 years pass.