Employer behavior

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Tax Counsel said:
I suggest that you take your copy of the supposed contract to an employment law attorney who represents employees in disputes with their employer. Just because you signed that agreement doesn't necessarily mean that you have a contract with the employer. These agreements are often not enforceable as contracts because they lack mutual consideration. Consideration is something you give up in exchange for something from the other party. A number of courts have held that an employer offering continued employment is not, by itself, sufficient to count as consideration. So the first thing you need to find out when consult that attorney is if there is an enforceable contract at all.

If there isn't a binding contract between you and your employer then you are simply an at will employee and may be fired at any time for almost any reason. The reason doesn't have to be a good one. All that matters is that the reason isn't one of the relatively few reasons prohibited by law. The most common prohibited reasons are terminating you because:

(1) of your race, color, religion, sex (including sexual orientation, gender identity, etc) national origin, citizenship, age, disability, or genetic test information under federal law (some states/localities add a few more categories like marital status, veteran status, etc);
(2) you make certain kinds of reports about the employer to the government or in limited circumstances to specified persons in the employing company itself (known as whistle-blower protection laws);
(3) you participate in union organizing activities;
(4) you use a right or benefit the law guarantees you (e.g. using leave under FMLA);
(5)you filed a bankruptcy petition;
(6) your pay was garnished by a single creditor; and
(7) you took time off work to attend jury duty.

The exact list of prohibited reasons will vary by state. The Washington state Department of Labor and Industries page on termination and retaliation explains the laws that apply in that that state. explains the laws that apply in that state.

If there is an actual employment agreement in place, then the exact language of the contract matters as to when and for what reasons you may be terminated. Does the document say anywhere that you are guaranteed employment for some period of time (e.g. one year) except in circumstances that are specified in the contract? This is also something to speak to the employment law attorney about.
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Ok, thanks Tax Counsel, I have not thought about consideration and how that relates to an employment agreement. I have a signed employment agreement that I would want to redact to ensure privacy for all parties, but to summarize it was signed by both me and manager and termination is based on the terms of the employee manual. How that relates to my PIP, I am unsure about, but after reviewing the company employee manual, I did not, specifically, see PIP language in the manual. I think this is a specific circumstance that relates to performance and improvement in the workplace. However, as suggested in previous post, that this could be a tool for termination of employment. Personally, I would feel sad if the worst came to light, as I show up for work everyday on time and give my best in the job. It would be even sadder for me if knowing there is someone who does not see, understand or appreciate what I do everyday in my job. I am not sure if being part of a merger from small CPA firm to bigger CPA firm with more employees creates a more competitive atmosphere for client work, but I guess that just part of the current workplace.
 
jsmith123 said:
Ok, thanks Tax Counsel, I have not thought about consideration and how that relates to an employment agreement. I have a signed employment agreement that I would want to redact to ensure privacy for all parties, but to summarize it was signed by both me and manager and termination is based on the terms of the employee manual. How that relates to my PIP, I am unsure about, but after reviewing the company employee manual, I did not, specifically, see PIP language in the manual. I think this is a specific circumstance that relates to performance and improvement in the workplace. However, as suggested in previous post, that this could be a tool for termination of employment. Personally, I would feel sad if the worst came to light, as I show up for work everyday on time and give my best in the job. It would be even sadder for me if knowing there is someone who does not see, understand or appreciate what I do everyday in my job. I am not sure if being part of a merger from small CPA firm to bigger CPA firm with more employees creates a more competitive atmosphere for client work, but I guess that just part of the current workplace.
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The employment agreement specifies the dates of the contract, ie from July 1, 2024 to June 30, 2025, but does not specifically guarantee employment but does specify that if the employee manual terms are violated, then you lose the job.
 
jsmith123 said:
The employment agreement specifies the dates of the contract, ie from July 1, 2024 to June 30, 2025, but does not specifically guarantee employment but does specify that if the employee manual terms are violated, then you lose the job.
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Take a look at the following article describing an employment agreement, as contrasted with an employment contract.

The PIP, to which you referenced is nothing more than an employee "performance improvement plan".

Normally an employee is placed on a PIP to allow the person to remediate behavioral or work performance flaws, errors.

A PIP is more akin to disciplinary action, rather than mere employment (retention).

Among my myriad employment lives, I also retired as a partner of Deloitte & Touché, in one their mergers and acquisitions practices. DT regularly used PIPs to retain employees who were struggling in it's fast paced environment.
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An employment contract can take the form of a traditional written agreement that is signed and agreed to by the employer and employee. However, more often employment agreements are "implied" from verbal statements or actions taken by the employer and employee, company memoranda or employee handbooks, or policies adopted during employment.

One of the advantages of formal agreements is that the employer and the prospective employee can get an understanding of the job responsibilities and expectations before the job begins. Whether the employment agreement involves independent contractors or full-time employment, it could be essential to have clear definitions and explanations of the duties and obligations of both parties.

Termination and "At-Will" Employment

Employees often use employment contracts to show that the employer's right to fire an employee was limited. In most states, employment is generally considered "at will," meaning that the employer can fire the employee at any time. However, an employer's right to fire an employee may be limited where the employee can show that the employer entered into an explicit contract to retain the employee for a certain length of time. Alternatively, "implied contract" may dictate that employment will be terminated only for cause.

Many states also recognize that a verbal statement by an employer, such as "you'll be here as long as your sales are above budget," may create a binding contract of employment. However, the enforceability of such verbal agreements is limited by a legal doctrine known as the "statute of frauds," which provides that an oral agreement that cannot be carried out in less than one year is invalid.

In the above example, because the employee conceivably could have fallen below budget and been fired within one year, the agreement would be enforceable, even if the employee was not fired. A verbal contract must also be specified to be enforceable. A statement such as "You'll have a job here as long as you like" generally will not be enforced.

Finally, a few states recognize an implied contract of employment where an employer has engaged in a "course of dealing" over the years, for example, by keeping employees on as long as they maintained specific performance standards. As a result, an employee may claim that they may not be fired as long as they continue to meet those standards.

Employment Contracts: Other Considerations

Employment contracts, whether written or implied from employee handbooks or policies, may also have provisions concerning:

  • Base salary
  • Term of employment
  • Health insurance
  • Vacation and sick leave
  • Employee grievance procedures
  • Termination of employment
  • Employee behavior after termination of the employment relationship
In general, the scope of such an agreement, whether the geographic area covered or the length of time it lasts, must be no broader than necessary to protect the employer's business. In addition, while a covenant not to compete may typically be imposed on a new employee as a condition of employment, if it is imposed on an existing employee, it must be supported by some independent consideration beyond a simple promise of continued work, such as a raise, a bonus payment, or improved commission terms.

Types of Employment Contracts and Compensation Agreements

1. CONFIDENTIALITY AGREEMENT: An employee confidentiality agreement is a contract (or part of a contract). The employee promises not to share any information about the employer's business or the employer's secret processes, plans, formulas, data, or machinery. Usually, a confidentiality agreement lasts even after the employee no longer works for the employer.

2. NONCOMPETITION AGREEMENT: In the non-competition clause, the employee agrees that for a certain amount of time after they stop working for the employer, the employee will not become employed by a rival company or any company engaged in a similar type of business. The employee will not set up a company that will compete with the employer's business (or solicit the employer's customers). Usually, the non-compete clause is limited to a particular geographic area.

3. OWNERSHIP OF INVENTIONS: This provision applies to employees who invent things as part of their jobs. In this part of the contract, the employee agrees that anything they create at work (or during a set period of time after termination) becomes the employer's invention, not the employee's invention. Additionally, employees usually agree to assign their inventions to the employer, cooperate to get inventions patented, and keep information about the invention confidential like any other trade secret.

4. BEST EFFORTS: Although it is often assumed that the employee will work hard for the employer, sometimes employers add a best-efforts clause to the employment contract. It states that the employee promises to work to the best of their ability and remain loyal to the employer. Sometimes it also says that the employee specifically agrees to make suggestions and recommendations to the employer that will benefit the company.

5. EXCLUSIVE EMPLOYMENT: In this provision, the employee promises that as long as they work for the company, they will not work for anyone else in the same or similar type of business. It may also extend to a promise not to be a shareholder or director in a similar company or even provide services voluntarily to a competitor business.

6. NO ADDITIONAL COMPENSATION: The "no additional compensation" clause states that if the employee becomes an elected director or officer of the company or serves on a company managing committee, the employee will not be entitled to additional compensation for doing that work.

7. NO AUTHORITY TO CONTRACT: Sometimes, this part of the contract is called the "agency" provision. It clarifies that the employer and employee have an employment relationship only, not an agency relationship; the employee has no right to enter into a contract or otherwise obligate the employer unless the employer gives express written consent.

8. TERMINATION: A standard part of any employment contract is the "termination" clause. It states that either party may terminate the employment contract for any reason by giving reasonable notice, such as two weeks' notice. It may also provide the employer the right to terminate the contract without notice if the employee violates the agreement in any way. Another aspect of the termination clause is that the employer has the right to terminate the contract if the employee becomes permanently disabled because of ill health or physical or mental disability such that the employee can no longer do the job.

9. ARBITRATION: Arbitration clauses are found in many types of contracts, including employment contracts. In this provision, the parties agree at the onset of the relationship that, if they ever have a dispute about any aspect of the employment relationship, they will submit that dispute to arbitration rather than seek a resolution by a court of law. The "arbitration" clause may include details about the arbitration, such as whether the arbitration decision will be binding and how the parties will find an arbitrator when the time comes.

10. CHOICE OF LAW: Employment laws vary from state to state. Some states have laws generally viewed as more favorable or beneficial to employers than employees, or vice versa. The "choice of law" provision in an employment contract is an agreement that, if the parties ever have a dispute that results in a lawsuit, the laws of a particular state will govern it, no matter where the suit itself is filed.

Get a Legal Evaluation of Your Employment Contract

There are advantages and disadvantages to employment agreements. It's essential to weigh your options and make sure that the contract terms are fair. If you're afraid that you might be locked into obligations or duties that won't be fair to you, you might want to seek advice from a lawyer.

 
welkin said:
The plan to improve (often called a PIP, Personal Improvement Plan) is often a dead giveaway as to what is to come next. And that would be your termination. Rather than just terminating your employment without cause, they give you a no-win opportunity to improve. Failing to improve, you are terminated for cause. It's like an insurance policy for the employer.



It's time to freshen up your resume and start looking for new employment.
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My PIP in writing did not specifically indicate upon completion of it, that its a condition of employment. If I do not admit to violating the terms of my employment with my employer, whether in writing or verbally, but they ask for me to leave and turn in my key, and I agree to do so, is that action an admission of guilt or acceptance that I am in agreement with my employer decisions? If I decide to consult an attorney, should I mention that to my employer? Or keep that to myself, and allow the attorney to contact my employer from that point onward?
 
jsmith123 said:
If I do not admit to violating the terms of my employment with my employer, whether in writing or verbally, but they ask for me to leave and turn in my key, and I agree to do so, is that action an admission of guilt or acceptance that I am in agreement with my employer decisions?
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You're complicating a rather simple thing, mate.

Here's the deal.

Your PIP indicates what you must do and when it must be done in order to potentially remain employed.

Your employer doesn't need your consent.

Heck, your employer could have instantly terminated your employment for failing to do your job.

However, your benevolent employer showed temperance, compassion, forgiveness, and forbearance by allowing you to remain employed by completing the remediation efforts described in the PIP.

You agreed to completing THE PIP by affixing your signature to the document.

The PIP didn't need your agreement.

Your employer could have summarily fired you, yet the employer's benevolence illustrates the employer's kindness, compassion, and humanity.

Don't foolishly dismiss compassion for any other behavior.

Keep your mouth shut, complete the PIP, you remain employed.

Start kvetching, moaning, groaning, etc... you'll be shown the other, darker side of your employer.

Choose wisely, otherwise you'll not become fond of the alternative.
 
army judge said:
You're complicating a rather simple thing, mate.

Here's the deal.

Your PIP indicates what you must do and when it must be done in order to potentially remain employed.

Your employer doesn't need your consent.

Heck, your employer could have instantly terminated your employment for failing to do your job.

However, your benevolent employer showed temperance, compassion, forgiveness, and forbearance by allowing you to remain employed by completing the remediation efforts described in the PIP.

You agreed to completing THE PIP by affixing your signature to the document.

The PIP didn't need your agreement.

Your employer could have summarily fired you, yet the employer's benevolence illustrates the employer's kindness, compassion, and humanity.

Don't foolishly dismiss compassion for any other behavior.

Keep your mouth shut, complete the PIP, you remain employed.

Start kvetching, moaning, groaning, etc... you'll be shown the other, darker side of your employer.

Choose wisely, otherwise you'll not become fond of the alternative.
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Hi Army Judge, unfortunately I was dismissed from my work today. I really was holding onto your optimism that the job would continue but it ended. Moderator welkin was correct in his advice, however, unfortunate it may be. I do have the opportunity to appeal my dismissal as stated in the Employee Manual, so I will consider that along with the advice of an attorney. I will update my resume and make my self available as I have options and look forward to my next opportunity.
 
jsmith123 said:
Hi Army Judge, unfortunately I was dismissed from my work today. I really was holding onto your optimism that the job would continue but it ended
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Despite the way some often misinterpret or fail to understand the major function of a "PIP", more often than not, its used to weed out underachievers, miscreants, poor performers, and employees that aren't liked or adored by supervision/management.

However, you aren't the only person to have her/his employment terminated. You won't be the last, either.

You can overcome this unfortunate event by holding your head up high, brush yourself off, and get back in the fight. Don't get down on yourself, get busy improving yourself. As you begin to improve, never stop improving.

I wish you all the best. Don't be discouraged, stay encouraged, lift yourself up higher and higher everyday. Stay in the fight, because you only lose when you quit.

Going forward, don't ever stop doing more than expected. Don't settle for mediocrity, strive to excel. Don't stop with the minimum, ALWAYS deliver MORE than expected. However, strive to deliver earlier than management expects, and get it done.

Do those few simple, but IMPORTANT things, and you'll never be placed on a PIP again.
 
I have the opportunity to appeal my discharge, is there anyone in this forum that can offer advice as I make my appeal, either in writing or in person or both?
 
So the appeal letter states:

The employee may present informaton the employee believes "employer" should consider regarding the decision to end the employment and the reasons why the employee believes the decision should be modified or rescinded. I have within seven calendar days (to submit in writing) the appeal.
 
jsmith123 said:
So the appeal letter states:

The employee may present informaton the employee believes "employer" should consider regarding the decision to end the employment and the reasons why the employee believes the decision should be modified or rescinded. I have within seven calendar days (to submit in writing) the appeal.
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No one on this site knows enough about the issues that necessitated the PIP to opine intelligently as regards your efforts to perform as the employer designated in the PIP.

However, you know EVERYTHING that transpired to initiate the PIP. You know if you executed the PIP as specified/required.

That's the basis of the argument you must create such that the employer's designee can override the current decision to one that attests to you successfully completing the PIP.
 
Employers in this marketplace really have employees by the you know what. Even if you have an ADA and they discriminate against you by giving you work that you can not perform due to a disability then the employer can fire you. You could sue them but then you would be blackballed by most employers and not allowed to work again. You never want to get into the habit of suing employers. Most all civil cases are public record and they will find out and once they do you can hang up ever working for them again. This is why there are loop holes on when you can draw SS and SSDI then just retire. The job market is trash and has been since COVID. Employers know this and they play with employees lives like they do not care and they don't in most cases.
 
What should I look for in an employment attorney that is willing to consult with me as an employee? I have already contacted a few attorneys but some only represent the employer?
 
jsmith123 said:
Moderator welkin was correct in his advice, however, unfortunate it may be. I do have the opportunity to appeal my dismissal as stated in the Employee Manual, so I will consider that along with the advice of an attorney. I will update my resume and make my self available as I have options and look forward to my next opportunity.
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File for unemployment ASAP while you look for another employment opportunity. Don't waste your money on attorneys. Just move on and good luck.
 
welkin said:
I guess that pisses you off to point that out. How petty!
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Pisses me off? Haha - no.
I just want to make sure that folks understand that, despite the forum glitch, you are not a moderator.
 
Zigner said:
Pisses me off? Haha - no.
I just want to make sure that folks understand that, despite the forum glitch, you are not a moderator.
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Unfortunately the forum software seems to have several glitches in it. I hope at some point an update will be done to address those.
 
Tax Counsel said:
Unfortunately the forum software seems to have several glitches in it. I hope at some point an update will be done to address those.
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Like not having privileges to post in the chat forum and not Jack nor Michael can figure out why. That is a forum that Army Judge posts in often. I don't have privileges to post in it so I can't comment.
Zigner said:
Pisses me off? Haha - no.
I just want to make sure that folks understand that, despite the forum glitch, you are not a moderator.
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What difference does it make what folks think? Unless you think that moderators are smarter than non-moderators and what they post is more correct.
 
welkin said:
What difference does it make what folks think? Unless you think that moderators are smarter than non-moderators and what they post is more correct.
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Smarter? No, not necessarily. However, being labeled a "moderator" may tend to make new posters believe that you are somehow involved in the "moderation" of the forum when you are not. Why are you so hurt that I am pointing this out? I would think you would want others to know, rather than mislead them.
 
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