Over the past several months, I have heard from numerous business owners and individuals (employed and unemployed) asking me how to best protect themselves in the face of the latest economic downturn. A man I recently met through a friend wanted to know if he should sign the 25 pages of documents his new employer gave to him on his first day at work. A long time client in the medical industry asked me how to prevent one of his employees from leaving and taking with him a very valuable asset: his clients. Some questions are simple and others are more complex. However, the only bad question is the one not asked.
From the perspective of an employer, the success of a growing small business often depends on the hiring of competent, professional and talented staff. Finding and interviewing prospective candidates is often a tedious and time consuming process. However, the decision to offer a position to a prospective candidate is not the only important decision an employer needs to make. Likewise, an employee deciding whether to accept an offer of employment can no longer merely rely on the good will and optimism that typically characterize the start of any new job.
In an increasingly competitive market, both employers and prospective employees are looking to protect their financial and professional interests. Unfortunately, the hand shake will not hold up in a court of law. Today, the only way to truly insure that you will get what you are promised (as either an employer or an employee) is to get it in writing. As such, for both an employer and an employee it is important to know your rights and to do whatever is necessary to protect your interests.
We work in an “At-Will” State
New York is an “at-will” state. What that means is an employer can fire an employee for almost any reason. Unless an employee is terminated in retaliation for complaining about unlawful conduct or the victim of unlawful discrimination, the newly unemployed often have little if any remedy. There is no cause of action for “bad boss” and it generally makes no difference that an employee was treated badly.
As an employer, protecting the ability to discharge an employee for any reason is valuable. However, this also provides an employee with an ability to leave at any time and for any reason.
Accordingly, the employer needs to keep in mind the following:
1. Will my employee have access to confidential information?
2. What is the risk that my employee will leave to work for a competitor?
3. Do I want to protect my confidential information?
4. Do I want to impose restrictions on who an employee can work for after he/she leaves?
5. Do I want to prevent my employee from taking my customers or staff?
6. Do I want to limit the geographical region where my employee can work?
For an employee, the “at-will” standard also provides some measure of leverage. Such an employee has the potential to utilize what he/she learned to obtain employment with a competitor or even open up a competing business.
As such, the employee needs to keep in mind the following:
1. What are the exact terms of my compensation (including possible bonus or other incentive based compensation)?
2. What documents is the employer asking me to sign?
3. If I want to leave and work for a competitor or open my own business can I do that?
4. Is my employment guaranteed for a period of time?
The good news is that there are ways that both an employer and an employee can protect each of these important interests. Whether you are an employer looking to add staff or an employee seeking to get a new job or leave an existing job, consulting with an employment lawyer is a wise investment. For more information, please contact:
The Law Office of David S. Klausner
(914) 288-8706
info@klausnerlawfirm.com
