By Cliff Ennico
“A couple of years ago, I was employed as the marketing director for a small, family-owned business. For several years in a row, this company saw huge increases in annual sales as a result of my efforts. Unfortunately, the owner died and the owner’s son who took over the business fired me for no reason and put his girlfriend in my position. I got another job and am doing very well, but I just got a phone call from my old company making me an offer I ‘can’t refuse’ if I return to my old job. The girlfriend is no longer with the company, although the son is still CEO and they’ve hired a new manager so I don’t have to report directly to the guy who fired me.{mprestriction ids="1,3"} The salary and benefits they’re offering are very attractive, and I like the new manager a lot — he seems to be a real straight shooter. I’m tempted to accept their offer, but I’m worried that history will repeat itself. Is there any way I can protect myself against that happening again?”
Years ago, when I worked on Wall Street, we had a saying: “Fool me once, shame on you; fool me twice, shame on me.” You are an extremely brave soul to even consider returning to a company that treated you like dirt.
Having said that, small companies are extremely volatile, and things can change overnight. The fact that the company has reached out to you means it does respect your earlier performance and has high hopes that you will repeat that performance. But it needs to know you ain’t gonna come cheap.
First, you should insist on a written employment agreement — no handshake deals. In most states, you are an “at-will” employee if you don’t have a written agreement. This means the company can fire you at any time for any reason — or no reason. In light of your prior experience, that kind of agreement won’t be acceptable.
Second, insist on receiving an extremely generous severance package if you are ever terminated for any reason other than so-called good cause. You can’t bar an employer from firing you if the economy turns sour, the business changes or the employer just can’t afford to keep you onboard. But you CAN make it hurt. Don’t be afraid to ask for a full year’s salary with full benefits. If there’s a bonus or commission involved (which there probably will be, since you’re a sales guy), ask to receive your full bonus for two years following your termination “without cause” for all business the company generates from customers you brought onboard before you were terminated.
Third, have your lawyer look very carefully at the definition of “good cause.” You can’t prevent an employer from firing you if you are stealing from the company or convicted of a felony. But the definition should be as narrow as possible. Watch out for language allowing you to be terminated for good cause if you are insubordinate, since an employer can easily invoke this clause by making unreasonable and outrageous demands upon you. “Insubordination” should be defined as “employee’s refusal on at least two (2) occasions to follow reasonable directives of his immediate supervisor after written notice specifying in reasonable detail the conduct expected of employee.” That way, if you are fired for insubordination, there will be a written record on which you can base a legal action for wrongful termination.
Finally, consider a “no-jerk-around” clause in your employment agreement. This is a provision (common in large-company CEO and senior executive employment agreements) that allows YOU to pull the trigger and terminate the agreement if there’s a change in the company’s management and your position is downgraded within one year thereafter. So, let’s say the CEO gets a new girlfriend, fires the straight-shooter manager who brought you onboard, demotes you to assistant janitor and reassigns you to an office with a seat that flushes. A no-jerk-around clause would enable you to quit and collect a huge severance while you look for other work.
It’s an aggressive tactic, yes, and the company probably won’t like your asking for it, but I think it’s reasonable in light of your history with this company. You can soften its impact by including very specific language to describe the situations that would lead you to invoke the no-jerk-around clause, so the company has clear guidance on what NOT to do to you.
It may be true that the devil you know is always better than the devil you don’t know, but you are being asked to leave a nice, comfortable position and return to a company that treated you like garbage. You have every right to play hardball in your negotiations, so don’t sell yourself short.
If the company wants you back badly enough, it will pay your price.
Cliff Ennico (crennico@gmail.com) is a syndicated columnist, author and former host of the PBS television series “Money Hunt.”
COPYRIGHT 2020 CLIFFORD R. ENNICO
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