From: Michael Hammer (dotzero@gmail.com)
Date: Thu Aug 04 2005 - 10:26:56 EDT
On 8/4/05, Thor (Hammer of God) <thor@hammerofgod.com> wrote:
> No, it's not. I don't want to sound too harsh here, but this is not good
> advise... Well, to be more specific, it is not good "legal" advise.
> Requiring someone to sign a document in order to receive severance benefits
> could easily constitutes a state of duress (as I already said in my first
> email.) It doesn't cut to the heart of intent at all, it cuts to the heart
> of "I signed what they forced me to sign so that I would get my last check
> so that I could feed my family." Additionally, in some states (note that
> this perspective is from a US mentality) signing a document exacting
> performance (regardless of direction) in exchange for benefits could
> actually be considered an employment contract, thus giving the
> to-be-terminated employee more rights to employment benefits than originally
> offered -- even in "at will employment" states according to citations of
> specific case law I've read regarding the matter.
>
Perhaps I should clarify. This is not advice from myself but the
implementation from our attorneys. Notice that I said severance
package being offered. That is not the same as holding up someones
final check. Case law may provide precedent but decisions are usually
written as narrowly as possible. While Stare Decisis is an important
principle I would point out that it is not ironclad. Please note the
opinion in United States v. Washington, 872 F.2d 874, 880 (9th Cir.
1989). Case law is not immutable. If that were true then we (in the
U.S.) would still be handling race relations on the basis of Dredd
Scott vs Sanford.
Seeing as you reference case law that you have read and given your
earlier comments about getting legal advice from lawyers and not
techies, I presume we are to assume you are a member of the bar. If
not, I'd ask on what basis you consider yourself competent to declare
it to be bad legal advice?
I would also point out that your logic as to duress is fundamentally
flawed. One could use the same argument for agreements required as a
condition of employment (by your logic). "I signed what they forced me
to sign so that I would get my first check so that I could feed my
family."
> But of course, you need to check with your lawyer on this point. I don't
> take technology advise from my lawyer, and I would suggest to readers of
> this post that they don't take legal advise from technologists either.
>
If he had wanted advice from lawyers then he would have (should have?)
posted to legal-advice@
>
> That *must* be addressed at employment. NDA's and NC's need to be signed
> coming into employment, not leaving it. But again, check with your lawyer
> on that.
>
Again, I should perhaps clarify. You are correct that one should have
those in place upfront. The purpose of having a document signed at
departure indicating the obligation to adhere to NDAs,non-competes and
IP agreements is to make it clear that any acts were not accidental
and that the issues were discussed.
> >This process does not have to be done in a heavy handed way but should
> >be done in a way that makes it clear that the company is paying
> >attention.
>
> Making someone sign something to get their final check *IS* heavy handed, no
> matter how nice you try to make it. Addressing aspects of system state and
> security is something you build into the employment policy (not contract,
> unless you really want a contract) when people get hired, not when they are
> terminated or willfully leave employment.
You are really hung up on that final check issue. Again, please go
back and read what I wrote. I did not say that a persons final
paycheck should be contigent on anything. That would be a serious
no-no in most legal jurisdictions. I said "any severence package being
offered". Final checks are compensation and not a severence package.
My personal perspective is that I'm a hired gun. When my employer no
longer wants my services I'll find somewhere else to roost. Not a big
deal. If I choose to go somewhere else I always try to give reasonable
notice and help whomever is stepping in get up to speed before I
leave. The IT community (particularly security)in most bergs is
relatively small and people talk. It's the nature of the beast. My
only concern when I depart would be limitations from an IP agreement
and I have found that most employers, if they want you bad enough will
adjust (within reason) IP agreements if asked. NDAs are normal and
non-competes are relatively meaningless if they are overly broad (This
has been made clear in case law).
As Irvin is an outside consultant he needs to be careful in what he
states and how he states it(I do hope he has E&O coverage) vis a vis
the contracting party. As I pointed out in my prior post, there is no
way that he can prove the negative (certify that the departing
employee didn't leave anything nasty behind) without entirely
rebuilding each system and app from scratch. At best he can provide a
list of steps to follow that would be considered reasonable and
appropriate (there's that industry standard issue again).
There are departure checklists available from various sources and I'm
surprised that a financial institution wouldn't be aware of them. A
financial company likely falls under GLBA (and SOX) at a minimum. They
almost certainly have an outside auditor they could turn to (all of
the large ones and most mid-range ones have practices for auditing IT
controls).
Just a few random thoughts. Time to reset the registers and focus on
other things.
Mike
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