September again.
No matter how old you are, the end of summer and the approach of Fall call up memories of going back to school, which makes it a good time to review some of our own “ABC’s,” basic principles of our practice as executive employment attorneys.
A. Don’t Resign. All too often, an executive who has experienced a challenging or frustrating work situation contacts us only after the emotions of the situation have become so overwhelming that the executive has already tendered his or her resignation. Don’t do this! Having already resigned makes it far more difficult (and, occasionally, even impossible) to assist executives who — often through no fault of their own — have serious employment problems. Protect yourself and your executive compensation and reputation by resisting the temptation to tell the employer to stuff his job, and, instead, make an appointment to discuss the problem with an attorney experienced in executive employment matters.
B. Time Is Money. A twist on this old cliché is a helpful aide-mémoire for a valuable corollary to the first rule “Don’t Resign.” What it means in this context is that the earlier a client reaches out for legal guidance, the easier it is for the attorney to craft a cost-effective solution.
If, for example, an executive receives an unexpected and unfair performance review, which often plainly is designed to “build a record” so as to give the employer an allegedly valid business reason for terminating the executive, contact an attorney right away. Don’t wait to secure knowledgeable employment counsel until the axe falls and the termination package actually has been delivered. There may well be things which can and should be done while the executive is still employed but which will become more difficult or wholly unavailable once the employer has acted upon its decision to fire the executive.
Another example is the executive who anticipates a new job offer or the renegotiation of an existing employment agreement. The sooner counsel is involved, the more efficient and effective the result.
C. But It’s (Almost) Never Too Late. Even if the executive has already violated the two previous rules, he or she should still seek legal assistance. No one should reflexively sign any part of an employment agreement, and thereby release or pass over valuable rights, before consulting counsel. Sign in haste, repent at leisure.
And this applies with extra force when it comes to those instances which are governed by time periods imposed by law. For instance, if an executive is over the age of forty, he or she must be given at least twenty-one (21) days from the date they are handed termination papers in which to consult an attorney before having to sign (or reject) the proposed termination agreement, then another seven (7) days to revoke their acceptance of that agreement. If you are careless and miss those dates, you may be out of luck. Any executive who receives a termination package should get it to their employment attorney immediately.
D. Be Careful to Keep Your Personal Records and Correspondence Separate from that of Your Employer. It is astounding that, although the use of electronic correspondence devices has been common in the workplace for over two decades, many executives still reflexively use their work devices to transmit and store personal information. All personal information and correspondence should be kept completely separate, and should be sent and received only using a private email server and stored only on a personal device. By now, all employees, and not just senior executives, must understand that no employee has a legitimate expectation of privacy when he or she sends a personal message, or puts personal photos or records on a work computer or other electronic device supplied by an employer and dedicated to the employer’s business. As executive employment attorneys, one of the first things we instruct any new client is to set up a private and secure channel of communication with our law firm so that the attorney-client privilege remains inviolate. Moreover, self-protective common sense can save executives from having to pay us or some other attorney to retrieve potentially embarrassing communications, personal bank statements and medical records from an ex-employer (P.S.: they never should have been kept there in the first place).
E. Be Wary of Social Media. Here, too, it is elementary that executives should never post anything on social media which they might not want an employer (or anyone else) to see. You would be surprised how many otherwise brilliant and accomplished executives don’t “get” this simple rule.
F. Don’t Sign Any Key Employment Documents Without a Legal Review. Has your employer suddenly decided to implement a new restriction in the form of a non-competition or non-solicitation agreement as a term and condition of continued employment? Before an executive signs on to this or any other agreement, they should have a lawyer review it and explain its full legal and practical ramifications. This caveat applies with extra force to offer letters, contracts and any other documents presented to an executive who is accepting or leaving a job.
G. Don’t Negotiate For Yourself. Even skilled, professional negotiators cannot negotiate as well for themselves as they can for someone else. Accordingly, it is virtually always cost-effective for an executive to hire an experienced executive compensation attorney to negotiate a new or renewal employment agreement. In our experience, the results of doing so are invariably superior to those achieved by doing it yourself. As the proverb goes, don’t be “penny-wise and pound foolish,” particularly since the initial executive employment agreement sets the stage both for future contracts as well as the tone of the on-going employment relationship.
Simple rules all, but key to cost savings and better legal results.
Best wishes for your end of Summer and beginning of Autumn!
