Employee Survival Guide® - Mark Talks With Nick Corcodilos about Enforcing Oral Promises and Effective Job Search Strategies

Episode Date: June 11, 2021

On this episode of the Employee Survival Guide Mark Carey has an interesting discussion with his friend Nick Corcodilos from Asktheheadhunter.com.  The focus of the hearty exchange is about oral promises of employment and how to enforce them when the employer gets cold feet.  They also discuss job search methods and how to conduct a successful job search using targeted job search strategies.  Mark and Nick share stories and tips from their combined experience handling employment law matters and counseling clients regarding landing a job.Listen to the Employee Survival Guide podcast latest episode here  https://capclaw.com/employee-survival-guide-podcast/If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.For more information, please contact Carey & Associates, P.C. at 475-242-8317, www.capclaw.com.The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide. Today I am talking with myself and Nick Korkadillos, and we are going to talk about topics relating to being offers of employment and problems that occur, and then we'll get into the meat of it right away. All right, today we have Nick and myself. We're going to have a conversation about getting a new job offer and what problems do arise that we've experienced. But Nick has his stories and I have mine in terms of prior clients and what we've done to resolve the issues. So Nick, why don't we start with the discussion about an example that you remember that where an individual got a job offer and things went south.

Yeah. Unfortunately, Mark, rescinded offers are more common than you might expect. On AsktheHeadhunter.com, I get a lot of questions and complaints from my readers who run into these unfortunate situations. And the saddest story that I encountered was a woman who got in touch with me to explain that her husband had gotten a job offer across the country. It was a good deal. He took it and he moved on ahead. She stayed behind to basically break their apartment lease and take the two young girls out of school, pack everything up, start heading west, only to get a phone call from her husband who explained, I got here and they told me the offer was rescinded. She said, my two girls started crying. They broke into hives. I'm feeling well at all. I'm getting headaches. This is terrible. We don't know where we're going to live. We have to move in with my parents.

What recourse do I have? And I tried to give her my best advice, but realizing this was a legal situation, I had to refer her to an attorney. At the time, I didn't know you, or I would have sent her to you. But I'm curious what your thoughts are, what your advice would be to someone in a situation like that. I'm surprised to hear it's more common. We do encounter that problem and have dealt with it in a non-litigation way. We try not to – we use litigation as a last resort. But the example is really an issue of an oral promise being made by the employer and the employee accepted it, sold the house, had a tax sale, and then started heading west to the job and incurred all these expenses, obviously. And then when the job is taken away from him, he has a claim for essentially what's called a breach of an oil contract. There's also additional claims you can use based upon

representational state about the employer, the job offer. Well, what did the employer know at the time of the job offer? Did they know some set of facts that they knew that the offer wasn't valid because there was another set of facts that was also going to control the outcome that essentially ended the offer without the employee knowing, of course. So you get into what's called an intentional or fraudulent representational type of claim, and then a lesser degree claim, the new or should have known claim, which is like negligent misrepresentation. And we've brought that claim before to employers, public companies, where this happens and it takes several weeks to resolve it, but the employer understands that it should resolve it and avoid litigation because somebody made an enormous mistake inside.

So from our standpoint, we don't see the claim happening as often being brought to us. That could be for a variety of reasons, but there would be a claim there. There would be a substantial recovery. the kid I've dealt with, there'd be a substantial recovery. I think enough money to allow the person to be put back in the position they were before the egregious act occurred, meaning go back to where they came from, find a new house, the expenses related to that, and then the loss of income because they've given up their job. Most jobs don't accept you back, but if the old job does accept you back, well, that's a mitigation measure that is required of parties in breach of contract cases. So that's really the analysis that you want to go through to assess that situation. When we were talking earlier about this, Mark,

you used the word reliance. By that, do you mean that the new hire relied on the new offer before he quit his old job, got rid of his apartment, moved his family. Can you explain a bit about what reliance means? Well, when you think about contracts, you think about somebody offers something like here's a job and the employee says or the executive says, okay, accept it. hear the job, and the employee says or the executive says, okay, accept it. At that juncture, he starts to make decisions about things about moving to the West Coast and the East Coast and selling the house. And so he's relying upon the oral agreement being made. Even though there's an at-will situation, you still can have an oral contract because nothing's signed that says at-will. The offer letter may say at-will, but you have this really unusual circumstance where

one party made a mistake, either intentional or not, and the other person relied upon it, and we got to fix that. And so that's where it's a contract legal argument that a court would evaluate literally, is that reliance reasonable under those circumstances, the storyline of the fact pattern you gave? You know, I think I'm hearing more about rescinded offers than you are because people I think are hesitant to think about getting legal counsel. I think they become accustomed to human resources departments sometimes abusing their power and suggesting to a new hire, to a candidate, this is just the way it is. They might say, for example, well, we had a business reversal that we

didn't expect. Sorry. See you later. And most candidates I find, I've been giving advice and headhunting for over 25 years. You'd be surprised how often a job candidate will meekly step away from a situation like this without realizing that getting legal advice need not cost an arm and a leg. I'm not giving a commercial for lawyers, but when you're in a situation like this, where someone has made representations to you, you've relied on what they've said, it's cost you money, it's set you back. I'm glad you're explaining it the way you are because I hope people who find themselves in the situation realize the best thing to do is get help. Yeah. I'm not going to pitch for lawyers, but the way we handle it is there's an ethical obligation by the lawyer to help the client, not to drag them into litigation, not to rack up the legal fees.

So just in terms of our own practice, we ensure we are finding out what's the goal for the client, what they want to accomplish. It's obviously not litigation. You – it's a relatively – I guess the point I'm trying to make to you is if you have a situation like this, spend the hour or two talking to a lawyer first. Control the legal relationship with the lawyer with your expectation of what you want to have happen. You can decide based upon the review by the lawyer whether it's worthwhile to pursue it or not. And it's really obviously lawyer-specific. We've dealt with this where we have gotten the resolution via severance settlement, but not litigation. I mean, that's what we do any time. 20% of our cases result in litigation because we can't avoid that. So it's really about getting the advice very early on,

taking a stab at it, because where's that money going to come from to put you back at the position of going back to the East Coast, get a new apartment or a new house and doing all the things you need to do and who's going to pay for that? So that's where you really have to search out the lawyer that's going to help you do exactly that. If you're hearing the alternative message or a different message of spend a lot of money, give it large retainers, which we don't do, and you are two or three months, a year down the road. That's not the right decision on the lawyer there. That's the wrong choice of a lawyer.

It's really, again, in summary, do a short triage of it, factually figure out what's a chance of success or not, and then approach the employer directly, quietly, without litigation, see if you can resolve it, and do it very quickly. That I hope people find. Yeah. So I noticed you had other topics that we were talking about offline, and we got into the issue of job descriptions, titles, and the like. And in terms of making the offer, and the offer is given to you, but when the job, I suppose, is where the issue is going, you know, the offer or the job is actually different what the offer was made. Is that something your clients encounter a lot? Yeah. I'll tell you another story about a fellow who got in touch who had gone through a lengthy interview process, then negotiated a good salary. He was happy with the definition of the job and it included a two-week training period. So he appeared when he was supposed to, he resigned his old job. And after the training was over, he was brought into a manager's office

and it was explained to him that because of changes in the business, he was being reassigned to another department at a $20,000 lower salary. He was shocked, got in touch with me and asked me, what's my legal recourse? And I never pretend I'm a lawyer. But what I suggested to him was that he might have done something during the offer acceptance process, or he might have done something with the job offer in terms of making some modifications to it and getting the employer to agree, that would perhaps say your minimum offer will be X. Again, I'm trying not to sound like a lawyer, but when I hear stories like this, I get very frustrated because the sense I get is that when HR brings people on board, rather than being totally transparent with them about their options

and about what may or may not happen once they come on board, it leaves being totally transparent with them about their options and about what may or may not happen once they come on board, it leaves the candidate hanging. Job seekers are really relatively naive. When you consider that changing jobs is considered one of the three most traumatic experiences in your life and how little care is really taken by most employers. Maybe they assume job seekers know what it's all about, but they don't. So in a situation like this, what legal right does the company have to change the title, the position, the role, and the money? Yeah, that's unfortunate. It's ironic. The way you phrase it being one of the probably former or three most stressful events in your life, changing jobs.

It's kind of an offshoot, a similar discussion we had before about what the employee thought when they first had the offer. And then they got to the company town and they said, OK, here's what the new deal is. I always ask the question of what you think you were getting when you accepted that offer. And then I ask the follow-up question, had you known you were going to get $20,000 less in pay, would you have accepted the offer? And you know the answer, it's always no. And so you get into this same oral, even though it's an off letter without the word at will and plummet used in it, it's the same argument again of misrepresentation, oral agreement or oral agreements. And you take it to a lawyer if you want to leave that job because you felt like you're kind of hoodwinked on it.

And it sounds like an example you provided that the person was, in fact, misrepresented of what the job was. And that's really not just fair. So they left the job was. And that's really not just fair. So they left their job before. If they didn't leave their job, that's actually an important fact. If they had a job and left it, that's one measure of damage. If they didn't have a job and they were out in the market looking and they took this job, that's a different measure of damage. Because if they left a job with a $200,000 salary and went down to a $150,000 salary, we know what the damages are. And so it's basically $50,000.

And you get into a discussion of settlement with the employer directly and try to work out a deal. So very similar to the first example. Here it's taking an offer letter. Even though it's an offer letter and they say, oh, it's employment at will. I don't really care. But the issue is what did you do, Mr. Employer, to the employee in this instance? And so if you find yourself in that situation, go talk to an employer, not just any lawyer, but an employment lawyer, and you should get the same type of discussion that we're going through right now, the analysis. Mark, could a job candidate kind of inoculate themselves once they get the offer?

They sign it, they restart the job. Could they inoculate themselves to some extent by sending an attachment, some kind of written note to the employer stating that going back to your concept of reliance, I don't have a job now, but I'm taking this job and I'm relying on the salary that you're offering me and on the specific position and title that you're offering me as I accept this position. Does that give you as the attorney any kind of additional ammo to help make a case? any kind of additional ammo to help make a case. It does. It just only bolsters the previous analysis we went through.

And it's really, you're always dealing with the same level of argument about the misrepresentation, the oral promise that happens. And so you can get into various iterations factually, but it's all going to boil down to that same type of legal argument. And the same process, again, we really haven't talked too much about it, but it's the lawyer telling the employer, and the way that the form of it takes is we would actually do an affidavit from the client, like what happened. They would sign a notary to it. That's the investigation of the case.

And then second, we would issue a notice of claims letter to the client, like what happened. They would sign a notary to it. That's the investigation of the case. And then second, we would issue a notice of claims letter to the employer, which is a sub-stock. And then we do a demand letter, which is very similar in letter, but it makes it all look very serious to the employer. Like, well, this attorney is coming after us. So it's designed to get into the bargaining table quickly. And that's the idea. Got it.

Got it. table quickly. And that's the idea. Got it. Got it. So the other thing I was thinking of various things as you're speaking about what, and forgive me for a second, you know, if the employer, you know, we all deal with this issue about will employment and people, again, don't really have a full working knowledge of what it means. They know what it means when you ask them a question. But what do you do when you're faced with, you know, situations that challenge the employer's actions, even though at will? I want people to understand that you can take action to do certain things with your employer or future employer if this situation we're describing happens to you.

And don't have any fear of doing that because you may get the compensation. You're not going to get the job back that was offered to you and taken away or the deal you really wanted. So don't hesitate to challenge the employer. You're not buying a lawsuit. You want to actually avoid that. challenge the employer, you're not buying a lawsuit. You want to actually avoid that. Don't talk to lawyers who say litigation is, we're going to put you in the suit. It's like,

that's the wrong answer. That's just creating legal fees for lawyers. Because I'm not a lawyer, but a headhunter, I try to give candidates sort of a prophylactic approach, things they can do to avoid a problem. And sometimes I find that it's as simple as realizing that once you have the job offer in hand, the company has made a commitment to you. Now is really the time for you to interview them because they've made you an offer. They've committed to you. You've committed to them. You haven't accepted the offer yet. This is the time to ask a few tough questions. And the kinds of things I suggest are things like this. I like to spend half a day shadowing my future manager. I'll start in two weeks, but I'd be willing to come in before those two weeks start to shadow my manager, spend a little time with the team, getting to know people.

And getting a better idea of what the day-to-day is really like. Now, some companies may say no. I've had companies who've actually said yes, and they're frankly impressed the candidate is willing to do that. The trick here is that you're kind of foot in the door deal. By getting your foot in the door and talking to more people, they have more of a commitment to you. It becomes more personal.

You also get to look under the rug a bit and see what kind of dirt is down there. Are people happy? Are there problems in the company? If you don't want to go so far as suggesting that you come in after you accept an offer, you can do that. You can say to them, look, our interviews have been great, but I'd like to interview and talk with a couple of people on the team that I'll be working on. So I'd like to get a better sense of how we're all going to fit in together. So once you're in there, I find companies are a little more hesitant to do something they probably shouldn't be doing. And they know they shouldn't be doing. They shouldn't be rescinding an offer.

They shouldn't be changing your title. It becomes more personal. Do you find that actually is happening more, that companies are willing to kick the tires of the employee and allow the employee to do it? Is that more common? There's a new trend. I think it's a very low level. You don't hear about it much. I don't hear about it much. But I've heard about companies who actually want to try the candidate out. out. Now, that's different from hiring someone on a contract to work for you for six months with an option to hire you full-time. This is really a situation where the company says, we'd like you to come in so we can try you out, you can try us out, which is a very enlightened approach to hiring people. HR departments are so bogged down in these applicant tracking systems and this rote keyword mechanized automated process of

bringing people on board that most of them would never think of doing something like this. And yet when you decide to marry someone, you don't do it because you just met at dinner, asked one another a bunch of questions. You date for a while. You spend time together in different contexts. Yeah, it makes sense. You view one other's behavior. My editor at Penguin, when they published my first book, said to me, I just realized, Nick, all these methods you talk about are the same things that we do when we're dating. That's true. It's all about getting to know one another. I don't hear that story as much on my end. I usually just hear, because everything's being told to you in hindsight, you know, that an offer was made and accepted. I really rarely, if ever, have heard this scenario being presented to me by any client.

It makes sense. And I really actually do approve that. I think what hinders most employers is that, you know, they get into this kind of HR mentality of we have to make the hire, we have to check the box, we have to do all the – it's all these things typically driven by benefits. Insurance companies need to know what's the hire date and being firm and all that. They're at will, so that means they can be hired one day and the next day they can be fired. So I think there's flexibility built into the process already. It's just that there's an old default that employers follow that they're so essentially a bad habit. And I think that your scenario, what you're describing, would actually benefit everybody involved.

I mean, how much can you know about a person by a job offer or an interview? I can't do that. For me, I slow hire and I spend two, three hours with people. I mean I really want to know natural flowing conversation and get the vibe of like what's this person like, which is kind of similar to what you're describing. I don't actually have the person come in, but maybe I'm going to start to think about that as well and expose them to, hey, here's what we do. I just had a person – I did actually similar – looking for a new candidate associate attorney in the office. I said, we do a lot of writing and marketing. Can you write me a piece?

And she did. And it was – I could build on what she produced. She eventually this past week said she was not interested. She eventually this past week said she was not interested, but it was – I like the higher approach because it allows me to kind of – people make decisions and it's not the honeymoon effect. You can think about it. If this is a direction that that person really wants to go into, I mean in my case, it's plaintiff's employment law practice and she's actually working at a defense firm right now. So it's a different cultural shift. So I like the approach to your take. I'm actually going to consider doing that more. I actually want to interject something

that's a real current of an issue right now that people probably should be aware of. Because of the pandemic and the reopening that's happening, there's claims, if you read the press, I won't mention which paper. I read an article in a major national paper last week where they said that the – you've heard this before. Well, the employees get to choose and negotiate better terms because they're in the driver's seat of the economy right now. And every time there's a recession and then we come out of one, you have the same discussion, but it goes nowhere. And the reason I'm bringing all this up is because if we're really having a transformation of the social events that are happening around us are changing,

I doubt whether any firm changes will occur in the future to, let's say, for example, I'm a big advocate of getting rid of the at-will employment rule and replace it with the termination process. And that's a higher standard of termination. But a lot of people don't know what this debate is about. Congress does. Montana does because that law is there and the only state in the country that has this. But if we're really making major changes, you need to know that when you have this kind of recession, can you bargain for a better position?

Try telling your employer, I'd like to be a termination for cost. If I screw up, break the law, what do I get a DUI? You can fire me if I do certain things. Just by the way, in our office, we actually have, we don't have an employment at will, Connecticut Employment Will State. And by the way, there's no statute saying employment at will. It's just a case law thing developed by the courts. So in our office, we have termination for cause. And it takes a lot, basically performance-based, to get fired. And I leave an exception to the rule. If there's economic issues, like a pandemic, that's an out for the employer. I mean, you got to have some type of safe harbor, so to speak. So that was just a thought I wanted to throw into where we're going in this reopening.

Employees, yeah, maybe you should start less fear and more bargaining and stand for what you mean, what value to the company, and see what you can get. Because if you don't ask, you're not going to get. I'm sure you hear that a lot. This should really be a big topic right now. I agree with you. It's very timely. I think this is why it's a good idea to get a lawyer and a headhunter into a room hashing this stuff out, because I'll tell you from my standpoint as a headhunter, what I will advise a candidate to do is question what's in the deal, what's in the offer. what's in the offer. Most job offers, employee policy manuals, what have you, you're aware as I am, they're boilerplate. And when a company shoves a piece of paper at you and says, here, here's the deal. We already negotiated it. Sign it. You come on board. Well, wait a minute. Let me take this home and read it. I'd like to think about it. I want to make sure I, listen, I want to take the job. I'm going to come on board. I'm thrilled for the offer. Thank you. Thank you.

Thank you. I really want to work with you. I'd like to go over the terms more carefully to make sure I understand. I don't think any company would ever argue with that as long as you're reasonable about the timeframe for getting back to them. But when you look at this document and you see some of the terms in it, or you notice that things are missing that you would like, most people make the assumption that the company is just never going to budge. It's in there, they're not going to take it out. I've had candidates cross stuff out, add stuff, and then speak to the hiring manager or to HR and say, I want to come on board. Everything's great. Just a couple of terms I'm a little uncomfortable about. Would you be willing to make this change

or this change? This is the real negotiation about a job, suggesting that one term or another be changed a bit. You'd be surprised how often an HR manager or hiring manager will bend. Now, sometimes they will bend in violation of company policy. to make sure you have the change in writing because your manager might get hit by a bus. Who knows? You want to make sure you've got something solid. But my real point here, Mark, is you can negotiate. As long as you do it professionally, forthrightly, gently, politely, managers, employers will listen. They may not agree to do something. But as you said, if you don't ask, you don't get. So you don't have to get yourself in the hot water. But you have to be aware that making this decision to accept this job doesn't just mean the job, the title, the window office, the money, it's the terms. You're going to live with terms. You have to live with these people under these terms for who knows how long. So this is the time where you really want to pause. You're excited about the opportunity. You want to just jump right in. I've had senior

managers, executives who just will not pause. They want to dive right in. They're so thrilled. This is where you have to stop. And I say to them, try to think like an attorney, because you have to be a little bit cold about this and make sure you understand what the deal is because now is the time to modify it if you want to. Yeah, I agree. And I don't know why – it's such an excellent point. I don't know why people have that fear, the fear to ask, the fear to negotiate. It's so prevalent.

And I call it a default rule of employment because the default is the manager or the employer is controlling it. Essentially, what are they doing? They're saying, take it or leave it. And we don't have to take it or leave it. I'll tell you why I think this goes on. And this is an important point that you're making. Why do job candidates allow themselves to be treated the way they are? And I think it's because the employment system, the way it's structured, tends to put the applicant in the position of a supplicant. It's as though you're begging for a job. And that's almost literally true. Because when you go online and you apply to 50 jobs in 10 minutes because you can, all you have to do is hit the enter key. Bam, bam, bam. You've applied to 50 jobs. Well, you're begging because you don't know what these jobs are really all

about. On the flip side, when HR in the old days, at the very least, if they rejected you, you'd get a nice little postcard in the mail, a US mail that said, thank you very much for coming in. We hope you find a job somewhere else. You're not right for us. Thank you for coming in. HR managers stopped doing that with the advent of applicant tracking systems and automated recruiting. And the first manager I brought this up to said to me, well, there's a simple reason for that, Nick.

I said, well, what is it? Well, it's because in the old days, we would talk to a dozen candidates and we could send out 11 notes. It was no big deal. We wanted to be polite. But now we have so many thousands of people applying for a job. We can't possibly get something out to all of them that's meaningful at all. My response to that is, wait a minute, you're making an excuse. You created the problem yourselves. You are soliciting thousands of people knowing full well that a tiny proportion of those

will even be potential candidates. So what you're doing is programming the job seeker market to accept abuse, if you will. I call it abuse more than- I would agree with you. Yeah, I would agree. It's a form of abuse. You keep wrapping a puppy on the head, you know, with the newspaper, you're not hurting it, but you're training it to believe that it's going to be abused whenever you want to abuse it. So rather than responsibly having human to human contact, responsible contact, this mill that's been created where thousands and thousands and millions of jobs are online, millions and millions of people are online. And it's almost like you're trying to put together a puzzle rather than actually have people talking to companies

about how we can all work together and do profitable work. So it's really a psychological issue, I think. It's almost a form of brainwashing. We own the job. You're the beggar. We'll give you what we want. And you have to live with it. Right. But how are you going to reverse that? How can we come to the table and saying, I want something better than what you're willing to offer? And I have just, this is a real giant pet peeve of mine. And I have two points to say to you is number one is, if it's like dating, you're basically going to drive and give back behavior and the employer is going to roll out the red carpet because they want to show you their best behavior and we're inclusive and diversity and all the sound bites they've been saying these days.

But when you get inside the business and you realize that was all just a bunch of lies, that creates a problem for the management of that employee. They've been lied to. They've been sold a bill of goods. employee, they've been lied to. They've been sold a bill of goods. So employers need to understand you can't abuse people like that with your nonsense because employees realize that. So that's one point. The other point I had was I called the LeBron James rule. And you know who he is. He's a great basketball player, worth a lot of money, and he can basically pick and choose where he wants to go. And I'm not saying that every employee is like that, has that leverage factor, but, you know, everybody has their leverage walking into a deal. That's why they're,

you know, the employer recruited them or the employers, you know, finally said, we'll make the offer to you because you have something to give to us. Figure out what you're giving to the employer. Figure it out because that's your leverage to get additional terms, maybe compensation, or maybe removing that non-compete out of the because that's your leverage to get additional terms, maybe compensation, or maybe removing that non-compete out of the situation that's been thrown at you. You didn't see it until after you started working. It usually happens. So think about those two components. And I say this from a really neutral standpoint.

I say the same thing to executives who earn multi-six-figure salaries. I say that to people who earn under $100,000. It's the same principles that applied. You really have to seize control of that side of the bargaining table and realize what you represent. You're just not a widget. You're actually something of a commodity of value to that employer. That's really the kernel of the solution, I think. of value to that employer. That's really the kernel of the solution, I think. Kernel, K-E-R-N-E-L. You don't have to be LeBron James. You don't have to be a star in your field, but you have to be good at what you do. And I really think the root of the problem, again,

goes back to this mass application, mass solicitation of candidates problem where everyone is fungible. One candidate is almost as good as the next. When you apply for jobs, forget about the fact that companies will solicit thousands of you to go in or apply. Think about the fact that you shouldn't be pursuing thousands of jobs or companies. There's an article, an old article on my website, on askthehandler.com, titled, There Aren't 400 Jobs for You. Back in the old days, you could wake up, the deal was, you wake up in the deal was you wake up in the morning, you're still in your jammies, drinking your coffee. And your objective is to get 20 resumes stamped and put on envelopes and mailed out before you have breakfast. Now, you know,

you've done something to find a job. Well, today, the version of that is to apply for a thousand jobs a day, a hundred jobs a day. It's just too much. You cannot be LeBron James. You cannot be a star. You cannot be the person they really want. And you cannot then negotiate with them from a position of strength unless you know you're applying for a job that you are probably one of the two or three best candidates for. So you have to reel the whole system back in and say, you know what? I'm not going to apply to 10 jobs today. I'm not going to apply to three.

I'm going to try to find one where I can study the business, talk to people, company, insiders, outsiders. I say, go talk to their vendors, contact their customers, talk to the lawyer, talk to their accountant, talk to anybody who does business with them, learn what you can. And when you approach the company, be able to do this in the interview. And if you can't do it, you have no business going to the interview, be ready to walk in, walk up to the whiteboard and outline how you're going to do this job. If you're not ready to do that, you're in no position to negotiate anything.

They have to want you. So you have to stand out from the next 50 candidates. That's how you get to negotiate and get away from all this nonsense. Well, I'll be the devil's advocate for some of your clients who probably this is familiar to you. But if there's automation of resumes and there's algorithms and there's search terms and keywords and stuff, and you have to get through that first, how do you compete that? How do you show that you did all your homework beforehand and you're still in the glut of a thousand or more resumes that some computer is handling that? I mean, is that research? And by the way, I'd hire that person because that person took an interest in my business and that's what I want to hear. Yeah.

It's kind of a Zen approach. I'll take you back to how you just started saying. You started saying because it's automated and it's a mass approach, blah, blah, blah. Well, the Zen approach is, you know, there's a story about the novice who, you know, is in the monastery with the monks, and he's studying Zen, and he's trying to find the truth, and he's trying to find the way, and he goes to the master, and he says, master, I need to go to the next village to go do XYZ. But there's a mountain. The mountain is too high to go over, and it's too wide to go around. What do I do? And the Zen master says to him, there is no mountain. There is no mountain. Well, in this case, you don't have to use the system.

There is no reason why you need to apply online. That's great advice. You don't need to apply to 50 jobs. When I coach candidates, I also do coaching one-on-one for people that I'm not working with as candidates, myself as the headhunter. And what I try to teach people is you need to break this mindset that you have to use the system. You know it doesn't work. So don't use it. Instead, spend your time picking out companies you really like to work for, study them, make contacts. You want to date a certain person and they don't know you from Adam and you don't want to get pushed away? You want to be successful when you ask them out? Well, don't approach them.

Take the Zen approach. Work around. Find out, do they play tennis somewhere? Are they part of a bicycling club? What church do they go to? Where do they hang out with their friends? And then become part of that circle. Introduce yourself that way in a context where they feel safe and they feel like you're someone who has some kind of a connection to them, however tenuous it might be, whether you go to the same church or whatever,

you bicycle together. That's how you get closer and that's how you get in the door. And you can do the same thing with any company. Today, online, it's far easier. You go online, you do a search for a company, you take a look at what articles have been written about them in the business press recently. There's probably a story that mentions three or four managers in the department you'd like to work for. Shoot them an email. Hey, I just read this article about you guys. You pulled off a really great deal. Can you tell me what you're reading nowadays that's influencing your work? Because I do similar work. I'm just curious. It's breaking the ice and having some kind of a shared experience with this person, talking shop, getting them to talk to you. Suddenly, you're not a job candidate. You're not a key word.

You're not a resume in the system. You're a human being. That's how the business gets made. Yeah, that's true. I think that's sage advice, Zen advice. I like the story. Let me add one topic to our discussion, and it's kind of similar to, and it'll spark some interest as soon as I say it, but what happens when the employer is throwing certain agreements to you that, like a non-compete or an arbitration agreement, and they're saying to you, and it maybe either shows up in the offer letter or it shows up at a later point in time, typically after you hired kind of two different examples. But let's say it shows up in the offer letter.

What can you do about it? You bet that non-compete is going to prevent you from working for a competitor in the future when you leave the company. An arbitration agreement, if you don't know what that is, means essentially it's confidential resolution. Nothing in court can't file like you. Certain companies have this. It's called forced arbitration because no employer or employee wants this. And by the way, no employee wants a non-compete, by the way. So I'm sure you've heard that or have come up with your clients.

I definitely have. One of the first legal terms that I learned as a headhunter was the term incorporation by reference. And what that means, my lay understanding of it is you get a job offer and it says, we're happy to offer you the position of XYZ at a salary of $100,000 a year. And on your part, you agree to give us references, do background checks, and so on and so on. And you also agree to abide by our employee policy manual, so on and so on and so on. So you look at this, and you think, OK, this is all cool. I can live with all this.

You sign it. So you start work. And then you see the employee policy manual, which says all employees agree to sign a non-disclosure agreement. All employees agree to sign a non-disclosure agreement. All employees agree to sign a non-compete agreement. Well, the worst example, the nastiest thing that I see when this happens is the candidate in the interviews thinks they can get a better job offer if they fudge their current salary. And then when they ask you, what's your current salary? If you're making 80,000, you figure, well, I make 80,000000 and I've got a potential bonus of $10,000.

I've got really good benefits. I'm really pulling down about $100,000. So you tell them you're making $100,000. You sign the offer letter. You show up for orientation. And they say to you, we need to see three pay stubs, please. What do you mean? Well, we need to see three of your most recent pay stubs at your old job.

You've seen that happen. That's private confidential. No. In our employee policy manual, it says that everyone who signs up to work here has to give us three pay stubs. So now you're on the spot. And I believe you can get fired for cause because you're violating the policy. If you turn over the stubs, well, you just proved to them that you lied to them. You misrepresented your salary.

So- Yeah, it's like resume fraud. You're kind of stuck. So my, again, I'm not a lawyer, but what I say to candidates is, whatever documents are referenced in the offer letter, they're included by reference, they're not actually there. Whatever documents are referenced in the offer letter, ask for copies before you sign the offer. Often people say, well, we don't give out our benefits package until you're on board because we consider it a competitive secret. So, okay. If you're not willing to give it to me, I don't know what kind

of deal. Well, don't worry. Your insurance is going to be great. It's the best in the industry. give it to me. I don't know what kind of deal. Well, don't worry. Your insurance is going to be great. It's the best in the industry. Well, show it to me. Because why would you buy a house without going inside and seeing what it looks like? So stay out of trouble. Stay out of trouble by making sure you understand what you're agreeing to. And it's far more than that single page offer letter. Yeah. But what if the employee says, well, I asked that question, but they still weren't willing to provide that information to me. And this response is, well, tell the employer that you're not so sure about the job offer because if they're not willing to be transparent with you, you might be moving elsewhere to another position, another job somewhere else. From a business standpoint, this is your legal view.

From a business standpoint, it's the old story about the guy who wants the red roadster. More than anything else, this is the car he wants. He goes to the car lot, finds the red roadster. The salesman knows this is all you want, and you're going to pay whatever is necessary to get it. The same thing happens to job hunters. You have to be ready to walk away if the person on the other side is not doing a good, proper, mutually beneficial deal for you. So sometimes the hard answer is you may need to decide to walk away from the deal if they're not going to be reasonable with you. Yeah. Let me give you also a real quick legal resolution or solution issue that fits in well here. And I tell people this, and they're kind

of like, they don't understand the solution, but I'll go through it very quickly. You know, let's say you're given a non-compete, and you ask for it. They didn't give it to you. You told them that they're not being transparent, and you really need the job, and you kind of, you know, that's typically what I see happens, and they take the job, and there's a non-compete. And down the road, they call you again saying, two years later, I need to get out of this non-compete. And so we ask, okay, when did you get the non-compete? Did they give you money for it? Was it given on the first day of employment or later on? Quick solution. Before you ever sign any offer letter or any non-compete, draft an affidavit that says, I never intended to enter into this agreement,

no way, shape, or how, and notarize it, and then put it in your, I don't know, in your safe, and hold it out, pull it out later on when you need it. What it does, it says to a court in the future, or to some employer who wants to seek to enforce it more likely, before the litigation starts, it says he had no intention to enter the contract. If there's no intention, then how can you hold him to the contract? So that's a real quick way to stymie the employer and their attorneys who think they have a home run against you. And meanwhile, you have this affidavit that says you never intended to enter into the

agreement. We've used it several times. It does work. So that's a quick piece of advice to help you in the event that you need to get out of the non-competing compete because you need to pay your expenses and you can't go on sabbatical for a year just because the employer wants a benefit that only benefits them. Now, wait. I'm confused. Let me make sure I've got this right. You're going to accept the job offer.

And you first write an affidavit that says you don't intend to accept the job offer and you first write an affidavit that says you don't intend to accept the job offer. Right. No, the non-compete. Oh, okay. Gotcha. Gotcha. The non-compete or the arbitration provision. Whatever the provision they're not willing to negotiate, you got to enter the contract. Gotcha. It would involve that. And then you use that later. And so you use it later and you bang it over the head. Obviously, he's an employment lawyer.

And you also want to shake him down. And what is your goal? You're trying to get out of the non-compete. Sure. So either you're going to get paid some money and get out of the non-compete or just get out of the non-compete. Typically, just get out of the non-compete. And it works. Or they reduce it to like, you know, a month or two.

The head-under solution to that is, and I've negotiated these deals for my candidates many times in the past. So you want my candidate to sign a non-compete, which will take them out of the market in their business, which they're well known for. And that's fine. So you're getting a benefit. You're avoiding costs and losses because you don't want to compete with this person. So there needs to be a compensation for that. So my client, my candidate will sign the offer letter and accept the non-compete. If you will produce a severance package, a severance deal, which says,

if the employee leaves the business, they agree not to compete with us for a year, they agree not to compete with us for a year and we agree to pay them for the next 12 months right so there's a price to a non-compete it's not free and what i find and again this is a negotiating issue not a legal one although obviously tied together what you're doing is is asking to get something back fairly in return so So if I'm giving you this, it's going to cost me money. It's like, I can't work in this business. So you've got to give me something to compensate me for that. Now it becomes a negotiation. You might not get exactly what you want, and they may not either, but hopefully you can come to some kind of an accommodation where you agree to something, they agree to something, and you're all happy. This is where, frankly, I would want an attorney involved

at this point. And I've brought attorneys into these deals before because you want to be careful. Yeah, we're talking about the flip side of the same issue. You're doing it in advance and basically providing the solution after the fact, because typically 80% of employees can't negotiate themselves out of non-competes because they need the job typically. But for the executive band level people, I've negotiated, there was a president of a public company and I can't really name names, but they had both the severance agreement that you described, sign in advance, you'll get paid X dollars. And then they had, in the situation I'm describing, they also had a non-compete pay period as well, which is highly unusual.

They negotiated in advance of that person's hire. So that's on the far extreme of what can possibly happen. But that doesn't apply to most folks. What you're describing is essentially a value exchange for something that's beneficial to the employer, the non-compete, which basically is targeting its competition. It's nothing about you unless you steal a sales list, whatever it is, then you have a right to get sued. You should expect to be sued. But if you're going to put your eye on the bench like that during the game for a year, we've got to pay you because someone's got to pay. bench like that during the game for a year, we got to pay you because someone's got to pay. I had a court case where I said to the judge, I said, judge, you know, someone's got to pay,

buy the diapers for this young family or do this, that, and the other, the mortgage. And it sunk in and the reaction by the judge was, well, why don't you guys just go out in the hallway right now and see if you can work this out? Because she didn't want to make that decision. But we're talking about the same aspect. And there are solutions to people. We've given them on the discussion today. We've given them that they can utilize and not have any fear about this. It really can change the game, and you can have a better situation. You'll feel happier at work, I suspect, because you did negotiate for yourself. And the employer is going to respect you because you did negotiate. I mean, you didn't take it lying down. So that's really important.

You're there as the lawyer to clean it up and fix it after the fact, because the candidate, the hire has no choice. My job is to try to help them up front. And again, what I try to drill into candidates' job applicants' brains is everything is negotiable and it's give and take. You want this, I want that. For example, this is pretty common in middle-level management jobs or staff jobs where you move to a new company after you've been at your old company for 10 years, you've earned six weeks vacation. Well, new company, standard policy, new employees get two weeks vacation. Well, wait a minute. I've got all this seniority. I earned my six weeks.

I'm not giving up my six weeks. So, well, we can't change our policy. Fair to everybody. Well, I'll settle for the two weeks. Perhaps you'd be willing to give me a starting bonus, maybe payable every six months for the first year. There can always be some kind of compensating factor you can use in a negotiation. So I tell people before you go into a job offer acceptance process, ask yourself, what am I willing to give on? And what am I willing to ask for? So you have a list on both

sides. So you go in prepared, knowing what you're willing to bend on and knowing what you're willing to fight for. And you sort of rank order them. You ask for the toughest stuff first, and then you work your way down. But you want to make sure that you know what your coin is really. It's a form of exchange. It's not just money. It's terms. I'll agree to this term if you agree to this term. Yeah. And important to say here that you're not going to get your full deal you really want. You got to understand you're negotiating to get 75% of what you want. You got to have that expectation because that's the reality. We've talked a lot about the offer and how to deal with employers who make other decisions when the offer is made and change it

and what you can do. Nick has provided his solutions that he's advised his clients on my side. I hope this is a very enjoyable and informative discussion for you and helps you in your next negotiation. Thank Nick for coming on. We're going to do more of these so more exchanges on various topics to give you the listeners a new resource to turn to because there's not a lot of information out there about these topics

thanks Nick for coming on today and we'll talk to you next time