Date: August 23, 2011
Author: Daniel Lublin
“Criticism may not be agreeable, but it is necessary.” –Winston Churchill
This is as true at work as it is in life, except that in workplace law there is always an exception. Here is a sampling of some of the questions readers of this column frequently ask and the answers I often provide.
When assessing merit, your appraisals matter. When assessing severance, they are mostly irrelevant. This is because poor performance is seldom cause for dismissal. Similarly, there is no such concept as “near cause”, which means there is no correlation between your level of performance and the quantum of severance you will ultimately receive. Therefore, if you are fired and it relates to performance, you should receive the same severance as if it did not.
Letters of reference
Employees believe they are always entitled to a reference. However, there is no rule or law compelling a reference, no matter how long or meritorious your service.
If there is a written contract, it has to meet a number of tests. You must, at least, be given the opportunity to negotiate or those terms that are punitive may not be enforced later on. This rule also applies during the course of employment, except that something of greater value must also be offered, such as a raise or a promotion, in exchange for a contract. Otherwise, the courts have reasoned, an employer could unilaterally impose new terms, and you would be left without the leverage to negotiate or refuse.
If you resign with advance notice and your employer asks you to immediately leave, are you entitled to pay for the remaining period of notice? Yes. Unless you signed a contract that says otherwise, generally you must be paid.
Independent contractor agreements
It usually will not matter that workers have signed agreements confirming they are independent from their employers. When this characterization is challenged, often many years later, courts are apt to find these workers were truly employees. No surprise there. Many times the contract represented little else than a “label”. What actually matters is how the parties behaved.