Executive employment and compensation attorneys prefer happy and satisfied clients. These two states of mind do not, however, always go together. They do, of course, when we successfully negotiate a new contract for a college or university president or a Wall Street executive.
But executive clients also contact us when things are going wrong, and when things have gone sufficiently wrong that their employment has been terminated and we are required to review and negotiate a separation and severance package. At this point, the clients are usually and understandably unhappy.
For an executive to have problems at work is distressing enough. To be fired, even without any legal “Cause” for the termination (e.g., a decision to cut payroll, a reorganization, a “Reduction in Force,” the decision to end a line of business or close an entire business unit, and that old standby: “We have decided to go in a different direction”) is one of life’s most painful experiences, often a sort of death, particularly for presidents, CEOs and managing director-level employees. These executives have a history of having been high achievers for many years; ordinarily they have had many more successes than setbacks in their careers. They also often have a strong personal identification with their employer, to which they have given years of loyalty and service. Like the late baseball Hall of Fame Manager Tommy Lasorda who “bled blue” for his beloved LA Dodgers, I have had executives express their feeling that they have bled for their employer’s interests. Termination under these circumstances is a shock and can feel like a betrayal.
We recognize the intense emotional stress of these major transitions, which is why an important part of our job as executive employment lawyers is to steady our executive clients and assist them to understand and think through their legal options at a time when their legitimate feelings of anger or sadness at their treatment by their current employer, or fear and anxiety about their future employment prospects, may cloud their better judgment. It is our job to keep them hopeful but realistic, and able to marshal their impressive resumes and historical credentials to take the steps necessary for them to be able to move on in their careers. This involves trying to achieve a fair separation package with greater severance and benefits, as well as making certain that they appreciate (or we attempt to amend or eliminate) any contractual restrictions which impact or limit their rights to re-employment. We also make certain that they understand what they will be giving up if they agree to a severance and separation package, including helping them determine whether they have viable legal claims they will be releasing. We educate them as to any on-going obligations to the former employer which remain in force so that they do not inadvertently violate them.
Of course, executives can be unhappy even if they are still employed. An abusive superior, a “hostile work environment,” discrimination both overt and subtle, lack of career advancement and even demotion in responsibilities or compensation, particularly where an element of perceived unfairness is present, and an employment atmosphere which elevates pervasive politics over genuine achievement: these are only some of the sources of discontent which our clients bring to us as executive employment attorneys.
Some of these problems and complaints are amenable to a legal remedy but some of them are not, and it is important to know the difference between the two. This is where we can be helpful by offering strategies and advices to our executive clients as to whether there are steps they can and should take to better their legal and practical positions. In these situations, executives have to be governed by a searching and honest appraisal of the facts, since those facts, as the old legal saying has it, “set both the client and his or her lawyer free.” We cannot make every executive employee happy, but we can leave them satisfied that they or we have taken every necessary step and precaution to protect, and if possible, improve their legal and practical situations.
Frequently Asked Questions
1. Q. “My superior is humorless and incessantly demanding. Is this a “hostile work environment”?”
A. Only a full review of the facts with an executive employment lawyer can answer that question. Unfortunately, the media has popularized the phrase “hostile work environment” so that many executives equate it with a merely unpleasant work environment. In general, the negative aspects of the workplace environment have to be illegal, ongoing and pervasive, although even less frequent instances of discrimination, sexual harassment and bullying may be unlawful by themselves.
2. Q. “My performance reviews contain untrue statements and misleading implications. Is there anything I can do?”
A. Yes, and there are things you should and must do to protect your executive employment position, including making certain that you promptly and fully correct the record in writing and requesting that your written rebuttal to the negative reviews be included in your employment file.
3. Q. “Once my Separation and Severance Agreement is signed, if a problem arises, should I call you or try to handle it myself?”
A. Please call us. Please DON’T try to handle it yourself unless, after consultation with us, we agree that you should do so. And see my forthcoming post, entitled “Silence is Golden.”