AVOIDING THE TRAIN WRECK

The workplace in the 21^st century is very complicated. Workers have more rights and are more transitory than ever before. Similarly, employers are much more likely to downsize, right size or optimize their workers out of a job. Just a generation ago the American worker could extend loyalty to his employer and have a reasonable expectation of loyalty in return. Many people worked for one company for their entire career and retired with a watch, a party, and the heartfelt appreciation for a career spent dedicated to the employer. Now without regard to loyalty, length of service or experience workers are "downsized" in their prime to make way for younger, less expensive, less experienced workers.

Companies maintain large human resource staffs and teams of lawyers to advise them in every aspect of the employee/employer relationship. Loyalty for long service has been supplanted by short term attention to the bottom line. Many workers with long time tenure with a company are in danger of losing their jobs.

Losing a job can be like getting hit by a train. It is dehumanizing, debilitating and destructive. Sometimes train wrecks can be avoided or at least their impact lessened with precaution, prevention, and preparation. Legal representation, even before termination, can be very important to help an older worker negotiate job security or a severance package if the relationship has deteriorated. It is important to be able to recognize the various stages, or warning signs, of a deteriorating employment relationship. Keeping with the train analogy, this article gives an analysis of each stage.

Crossing the tracks: Beginning a job is very similar to approaching a railroad crossing. Before entering into the new job many workers negotiate employment contracts to control the risk of a sudden termination. Surprisingly, many workers simply accept the offer without any effort to improve it. Many terms of the employment relationship can be negotiated up front, not just the length of service and the salary but also what happens in the event of a termination or downsizing. Severance agreements can be pre-negotiated on the front end or certain penalties put in place for early termination of the contract. Not all workers have the bargaining ability or position to negotiate an employment contract but for those who are in such a position it can help to insure that they are not run over by the train. An employment contract can establish safety nets and features in the event of a change in economic circumstance for the company or for the employee.

Whistle in the distance: Some workers, while in the throes of their career do not often times see the warning signs of danger. Often if you pay attention a termination can be predicted not unlike the distant whistle of a train alerting that danger is around the corner. A reduction in the volume of work can signal a rearranging of positions and responsibilities preparatory to terminating an individual. Also, increased references to technology and training requirements but without providing the technology and training requirements, can signal a shift toward younger workers. Sometimes it is as simple as coded comments such as "we need new blood" or "we need new thinking", can signal to older workers that management would like to hire younger people for their perceived energy or creativity. Training, energy or creativity are not lacking in older workers and if properly managed they can provide these needed traits for employers. However, older workers tend to have higher salaries and benefits costs making younger workers much more attractive. When an older worker sees these warning signs one strategy is to begin to negotiate a severance package or exit from the company in a pro-active way, thus enabling the older worker to control and avoid the train wreck.

The train is bearing down on you: When a worker is busy or management is stealthy, the worker does not hear the distant whistle but only recognizes the danger when he sees the train barreling down on top of him. In such a situation, the older workers’ best strategy is to artfully dodge the situation by attempting to negotiate a severance package or exit strategy with the company. An employment lawyer can help to position the older worker to cash out with the best possible severance package or an attorney can also help you evaluate the terms of a severance package as well as the reasonableness of it. Sometimes the severance package is exactly what it seems to be, that is, downsizing for economic reasons and the fact that an older worker is included as merely coincidental. A few dollars and time spent with an employment lawyer can help ease your concerns and let you know that the severance package is reasonable and that you are not foolish to sign it. In some cases, a severance package which is inadequate or the "downsizing" is merely a pretext for eliminating an older workforce. In such situations you should be fully informed of your rights and proceed accordingly.

The train has flattened you: Unfortunately, all too often older workers do not hear the distant whistle, do not see the train approaching and the first they realize they are in trouble is after the train has already hit them and moved on. In other words, after they have been handed a pink slip and told they are no longer needed. This time can be particularly devastating if the workers had a long tenure with the employer. The employee/employer relationships for many of us is the most significant relationship in our lives, second only to our significant others. When you are suddenly terminated the world can seem as if it has been turned upside down. Many times the last thing anyone wants to think about is lawsuits or money. The importance of this relationship often times goes beyond money. It is important at this time before you sign anything or before you lose your rights, to consult with an employment attorney and find out if you have been treated unfairly. Employers cannot make adverse employment actions such as a termination based on a persons’ age, race, gender, disability, religion, or other protected categories, and if that was the reason a worker was terminated the worker should pursue remedies through the Equal Employment Opportunity Commission or the courts. The employment lawyer can evaluate your case and tell whether or not the situation should be pursued. Employers should follow the law.

At Kramer + Crone we have a practice that helps employees. Our goal is a discrimination-free workplace. We represent workers when they have been treated unfairly and are the victims of illegal discrimination. We have seen the train wrecks. We know how to best avoid them. We work hard for our clients, help them pick up the pieces and make the best of a bad situation. Perhaps we can help you.