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By G. A. Finch
Have you ever set personal business, career or self-improvement goals, and you look up weeks and sometimes months later not having made progress on them? You realize that you have been distracted and diverted by other challenges and tasks and your goals are in the doldrums. Career, family and extracurricular demands get in the way. Life happens.
You read, hear and know that you must set specific goals for yourself to get traction on your life’s ambitions. You know further that it is preferable to have them in writing and with deadlines. You know what to do, but it is not happening.
Try bi-lateral coaching. Find a person you trust to be your coaching buddy. You hold each other’s feet to the fire. You meet to discuss your goals and why you have not met them. You, of course, write them down with specific dates of completion. You check in (preferably in person) once a week with your coaching buddy and you tell each other what you have accomplished or not. Your goals may evolve over time.
What is the effect of a coaching buddy? Your knowing that you have to report to another human being on your progress toward your goals is a powerful motivator to get things done to achieve those goals. It is called accountability. What gets measured and reported gets done. It is an inexpensive way to keep you motivated and on track.
I am doing it now and it has helped to keep me focused and more on task. I do not want to come up short when I report in to my coaching buddy, and, vice versa, nor does he. It is a simple solution. You do not need a drill sergeant or an expensive executive coach to kick you in the pants or encourage you – you just need someone to whom you made a commitment not to disappoint (other than yourself). For long range career development and holistic career counseling, an executive coach may be useful and needed. For goal setting and execution, a coaching buddy is an effective tool you ought to try.
Copyright © 2018 by G. A. Finch, All rights reserved.
By G. A. Finch
A liquidated-damages clause is a “contractual provision that determines in advance the measure of damages if a party breached the agreement.” Black’s Law Dictionary 949 (8th edition 2004). The benefit can be that the difficulty and necessity of calculating and proving damages in court or arbitration are avoided.
When in early April I began to see news articles about a company that routinely utilized liquidated damages clauses in its employment contracts, I was intrigued because 1) negotiating and drafting employment contracts for executives or for companies which hire them are a substantial part of my law practice and 2) I rarely come across liquidated damages clauses when reviewing or drafting employment contracts for clients.
I think it is an interesting tool in an employer’s employment contract box to protect its legitimate business interests. Generally, its enforceability will be driven by the particular facts of employment, the reasonableness of the agreed-upon damages, and the language of the particular provision.
Its apparently now controversial use by the company prompted me to review my considerable employment agreement files to assess the extent liquidated damages clauses were used. I did find a couple of them in two fields: media talent and physicians.
As I represent both employers and employees, depending on the particular client – employer or employee – I would advocate for or against such a clause on behalf of that client.
Although liquidated damages could be onerous for an employee, other clauses like non-compete, non-solicitation, confidentiality, payment-of-prevailing party’s-attorney’s-fees-if-party-loses-in-litigation, and out-of-town and mandatory arbitration, among others clauses, can be just as problematic for an employee.
I cannot be too sympathetic to employees who are penny wise and pound foolish in not paying for an employment lawyer to negotiate better employment agreement provisions for them including liquidated damages. It is akin to “buyer’s remorse” and the employee can only look to himself for signing an unsatisfactory employment contract.
An employer has the right to protect its business interests and an employee has the right to advance his or her own economic and legal interests. Everything is negotiable.
Now that I have your attention, you may want to know what exactly makes up a liquidated damages provision in a contract. Although not ordinarily seen in employment contracts, they are frequently used in commercial and real estate contracts.
The law concerning liquidated damages may vary depending upon the state. Using Illinois as an example, its courts state that as “a general rule of contract law that, for reasons of public policy, a liquidated damages clause which operates as a penalty for nonperformance or as a threat to secure performance will not be enforced.” Jameson Realty Group v. Kostiner, 351 Ill. App. 3d 416, 423 (2004).
However, Illinois courts will uphold the validity and enforceability of a liquidated damages provision when it meets three elements:
(1) the parties intended to agree in advance to the settlement of damages that might arise from the breach, (2) the amount of liquidated damages was reasonable at the time of contracting, bearing some relation to the damages which might be sustained, and (3) the actual damages would be uncertain in amount and difficult to prove. Jameson, at 423.
A proposed liquidated damages clause in an employment contract could read something like this:
“If Talent leaves the company before the end of Talent’s employment term except for reasons set forth above in section __ of this agreement, Talent agrees to pay on demand to Employer one-half (1/2) of Talent’s annual salary as liquidated damages and not as a penalty, and the parties agree that such amount constitutes a reasonable provision for liquidated damages.”
This fictional provision is an amalgam of two employment contracts that contained proposed liquidated damage clauses with which I was involved and represented the employee. Now whether it would be acceptable to an employee is another matter. Again, whether this particular fictional provision would be enforceable will depend on the particular facts and the particular state jurisdiction.
Of course, such a provision is put forth by the employer as a disincentive to the employee from leaving the employer before the end of the employment term or from violating a restrictive covenant like a non-compete clause. It is up to the employee and employee’s attorney to negotiate the elimination or reduction of the liquidated damages amount.
Copyright © 2018 by G. A. Finch, All rights reserved.
By G. A. Finch
It may sound trite but it is generally true that “leaders are readers.” That is not to say that an uneducated person cannot be a leader in his or her own way; nevertheless, reading has its advantages. We have read or heard that Bill Gates, Oprah Winfrey, Warren Buffett, Elon Musk, Steve Jobs and Mark Zuckerberg, among many other successful business people, are/were avid readers. Presidents John Adams and Thomas Jefferson read books as far into old age as they physically could and prized their personal libraries. Benjamin Franklin valued books so much that he created the first lending library in America, and we know what a wise and accomplished man he was.
More recent presidents, like William Jefferson Clinton and Barack Obama, are known to like to pick up a book. Whatever your politics may be, Clinton and Obama sound erudite, do they not? Their knowledge enables them to sound more persuasive and sound more credible, does it not? An effective executive seeks to become well read by reading often and reading a variety of genres.
Comparable to reading, but not as much as a deep-seated learning and not, I believe, as satisfying, would be listening to audio books and podcasts and watching substantive videos. In reading, you have time to ponder, contemplate, linger over and ultimately process the content. One’s listening to audio or watching videos constitutes a more passive brain activity than the act of reading. It is, of course, better than no learning activity.
The most cerebral people I know voraciously read books and periodicals. They are well versed on many topics and subjects and are able to connect them, contrast them, compare them, analogize them, extrapolate from them and meaningfully unpack them.
The act of reading or listening to books is the intention and commitment to learn new things and to be in a continuously learning mode – kind of like a continuing liberal arts education. Especially now, the intention-and-commitment-to-learn mode has become imperative given that the rate of expansion of knowledge and innovation seems to double whether in hours, weeks, months or years depending on the field.
My base technology knowledge as a 15-year old was rather primitive and quaint compared to my 15-year-old son who knows how to put together a computer from off-the-shelf components and to program a robot. He reads articles and blogs on the internet and watches YouTube videos when he wants to learn how to do something. That is useful learning. However, he and my teenage daughter and most other teenagers I know do not do enough reading of books, let alone wide and deep reading of books. I fear their writing and critical thinking skills and broad base knowledge could suffer. My base general knowledge as a teenager was far greater than theirs is. I attribute this gap to the fact that I had read many more books by their ages.
By reading, you learn how to write better by seeing word usage, different vocabulary, grammar, punctuation and syntax and hearing in the mind’s ear the writer’s voice. As I alluded earlier about being well versed, by reading you also know more about different topics to inform your professional or social conversations with others. It can make your conversations more interesting. Moreover, by reading you bring to bear more knowledge to understand and solve problems and ask the right questions in your work whether it be professional or volunteer work. When you face industry disruption, must be a change agent, or need to reinvent your business or yourself, your store of knowledge from reading will come in handy!
For those for whom reading does not come readily because of lack of habit or interest, or busyness, the trick is to approach it like starting any new program (like physical exercise or learning a new language): begin lightly with 15 minutes a day and incrementally work your way up to a robust hour. You may just remember or find what you have been missing all these years: the joys of reading. You will certainly grow smarter. Oh, and by the way, if you have trouble falling asleep at night, start reading a book; it is quicker and healthier than a sleeping pill.
Copyright © 2017 by G. A. Finch, All rights reserved.
Job interviews are so fundamental to professional advancement. Every executive has had a few times, if not many times, when the executive did not get the offer. The executive may feel that the executive “blew” the interview. The executive may be thinking: Was I too nervous? Was I too rambling in my responses? Did I not ask the right questions? Was my body language off putting? Was my voice too squeaky?
The executive will analyze the perceived failed interview a thousand different ways. What is more frustrating is that many executives extensively prepare for interviews by researching the company and its people, anticipating kinds of questions, and practicing scripted answers. They were prepared, or so they thought.
What most executives do not know about or consider is an interview coach. Even at the pinnacle of their talents, world class athletes hire coaches to improve their “skills.” Why wouldn’t you get help on how to nail a job interview?
My blog guest, Corinne Vargas, is just such a person who can help you “up your interview game.” She is the founder of CVC Consulting, a firm that offers, among other services, coaching for professional and business interviews.
FINCH: Corinne, we know that a successful interview has a huge impact on whether an executive makes it to the next round and hopefully receives a job offer. Why do you think it does not occur to most executives that it is worth the investment to hire someone to hone their interviewing skills?
VARGAS: In my experience, the investment is often not the barrier to hiring a coach. Instead, I have found many executives do not consider interview coaching and support for two reasons: 1) they are eager to start the process of finding a new position and feel they want to tackle it as quickly as possible, which often means alone, OR 2) do not know coaching is available for tailored situations. Unfortunately, many clients find coaches after attempting to tackle the process on their own and in various states of rejection, frustration, and desperation.
However, post-coaching, clients often express the lessened anxiety and frustration they felt during the process compared to going it alone. They explain having a coach “on their side” to help them through various steps in the process proved invaluable. Skilled coaches can help clients though different steps or aspects of the process including interview question preparation, nervous and anxious manifestations, content presentation, transition story framing and storytelling in the interview context. Coached clients frequently state feeling more control over the process and a higher level of confidence and preparedness, ultimately bolstering a better representation of personal brand and better outcomes.
My advice to an executive in transition or looking to transition, is that it is worth the time to at least explore a coach as it can save time, frustration, and help you achieve your goals with more confidence, focus, and many times speed. If an executive decides to explore the option, they should look for an interview coach who provides focused, tailored coaching sessions offering perspective and actionable feedback.
This post is for those executives and professionals who have left their organizations for one reason or another and are bursting with great ideas for business opportunities. We have all heard stories from people who lament that “my business idea was stolen from me” or “this person I trusted cut me out of the very deal that I conceived.” A well drafted non-circumvention document could have protected them from such shenanigans. A non-circumvention provision or agreement is designed to prevent a party from taking an opportunity or idea brought to this first party by a second party and then doing an end run around the second party to a third party. Typically, the second party expects to engage in or execute some kind of commercial transaction together with the first party in relation to some third party.
The non-circumvention can also be mutual so neither party can go around the other using the information obtained from one another. The third party could be a prospective seller, customer, client, vendor, supplier, investor, inventor, etc. As the opportunity or idea is usually considered proprietary and confidential, the non-circumvention agreement is often used in conjunction with a non-disclosure/confidentiality provision. Sometimes for good measure, companion non-competition, non-solicitation and no-grant-of-license provisions may be added.
What does a scenario for non-circumvention look like? One of my clients was negotiating with an investor to fund an acquisition of unique assets that had tremendous upside value and the client inked an agreement that prevented the investor from directly acquiring the assets from the seller without involvement of my client. A confidentiality provision was also included in the agreement.
What does a non-circumvention provision look like? Here are two examples:
Disclaimer: This post does not constitute legal advice and does not establish an attorney-client relationship.
I was fascinated with a 22 December 2016 Crain’s Chicago article “Feud explodes at one of the city’s most connected PR firms” by columnist Greg Hinz. The story intersected two worlds in which I practice law and work: executive employment and governmental affairs. Although not personally acquainted with the antagonists, Leslie M. Fox and Guy Chipparoni, from my own circles, I have some familiarity with their respective body of work and reputations.
Let’s set the stage. In September, 2014, Greg Hinz pens a short Crain’s piece , writing “Two of the more colorful figures in Chicago’s world of media and politics are getting hitched – professionally, that is…. Neither Mr. Chipparoni nor Ms. Fox is a shrinking-violet type. But both are capable of doing first class work. We’ll see how they do together.” The hint of skepticism of Mr. Hinz was prescient.
Fox had helped organize and raise funds for Chicago’s hosting the 1996 Democratic National Convention and 1994 World Cup Games (the latter event yours truly had a bit part at the creation). Chipparoni had been a flack for Illinois Governor Jim Edgar and founded his own successful public relations firm, Res Publica Group, of which he later asked Fox to become a part.
In December 2016, Fox filed a law suit against Chipparoni personally and his firm alleging that Chipparoni breached an employment agreement by not providing her severance benefits after she invoked a “Good Reason” termination provision “because during her employment there was a consistent, persistent and continuous diminution of Fox’s contractual duties, responsibilities, powers and authorities which … were to be those customarily associated with the position of Executive Vice-President.”
Two of the most serious allegations were A) that Chipparoni diminished her ability to prevent Chipparoni from appropriating opportunities and assets belonging to the firm and B) that Chipparoni treated the firm as his alter ego and did not maintain the firm as a separate legal entity. These allegations lay the foundation for a claim of personal liability of Chipparoni. Ouch!
Fox also has a more common variety breach of employment contract allegation that Chipparoni disparaged her to others. We do not know from the complaint what alleged disparaging remarks were made. We can assume that Chipparoni will file an answer to Fox’s complaint denying making disparaging statements or otherwise breaching the contract and file affirmative defenses to her claims.
In my executive employment blog, I have written that employers usually underestimate the destructive power that an angry, committed terminated employee can have on the morale, reputation, and resources of their organizations. What many employers fail to understand in their not being reasonable in their severance offer is that the terminated, aggrieved employee may present a sympathetic image to a judge or arbitrator or the court of public opinion. Moreover, the peeved employee may dig up bones of alleged legal and regulatory liability of which the organization’s higher ups may not even be aware. The organization may have unintentionally birthed a whistle-blower. A boss may have not ever thought of liability for the firm, let alone, his own personal liability
An employer’s having and abiding by a non-disparagement employment contract provision should be basic practice. From the employer side, the employer does not want a disgruntled former executive trashing the company thereby diminishing the brand, reputation, and good will of the company. The executive certainly does not want the executive’s ability to work effectively at the executive’s job to be made more difficult or to find new employment to be precluded by negative comments being made about the executive during the executive’s employment or after the executive’s employment. In the Res Publica case, Chipparoni’s alleged disparaging comments has produced a claim of breach of contract. A further take away for employers is that an employer must not say or write anything that injures the reputation of the executive that could form the elements of a defamation claim.
As I have blogged previously, severance payments are pragmatic. Employers ought to consider providing for severance payment and a neutral letter-of-reference in separation agreements where there is no employee misconduct. These provisions often generate goodwill from a departing employee, thereby reducing lawsuits, and the provisions can be used to bind an employee to confidentiality, non-disparagement, and non-compete obligations as well as release most claims against the employer. Severance payments demonstrate humaneness and compassion on the part of the employer.
Employment lawsuits are expensive and generate bad public relations for a company. As long as the severance compensation is not excessive, it really is a no-brainer in terms of a cost-benefit trade-off for an employer.
Fox wisely obtained an attorney to review and negotiate her employment contract that sets the terms of her separation from Res Publica. Among other things, it enables her to fire her employer when good reason is shown, namely, the diminishment of her executive responsibilities and receive a severance payment; it provides for non-disparagement of her to protect her reputation; and it sets out clearly the basis of her compensation. It remains to be seen whether she can prove her breach of contract claim, but protracted litigation creates bad optics for Res Publica and Mr. Chipparoni even if they prevail in the lawsuit. After all, public relations and governmental relations are about achieving positive outcomes or damage control. Neither positive outcome nor damage control has occurred here. In my law practice I have seen that this kind of dispute probably will settle sooner rather than later.