The Times also reported that tech companies like Microsoft and Cisco Systems use an employee grading system -- ranking workers by percentile -- to help decide who goes and who stays. Although praised by some executives as a way of making sure vital employees survive the ax, the practice can be easily abused, legal experts warn. "If you are going to engage in job grading, you have to spell out your criteria clearly and apply it evenly," said David A. Larson, a law professor at the Hamline University School of Law in St. Paul, Minn. "If your grading is more subjective, there is a real possibility for conscious or unconscious discrimination. For example, you may not think women tech workers are as good as men, and you may be grading them lower."
One favorable trend for employees, according to Larson, is that some courts are ruling against especially arbitrary examples of at-will terminations. "In situations where there's a [company] letter or memo stating you won't be fired as long as your work is satisfactory or stocks don't fall below a certain level, there's an implied assurance, even when you don't have an employment contract," he said.
Regardless of your current employment situation, these disputes point to one clear fact: Most tech workers need to be more aggressive when negotiating for their next job. "The best time to plan for termination is when you begin your employment; the worst time is when you've been given a pink slip," said Neil Klingshirn, an employee law attorney at Fortney & Klingshirn in Akron, Ohio.
Here are some tips:
- Negotiate an employment contract. Get the company to clearly state the length of employment and the severance package. Klingshirn admitted that most employers balk at such contracts, but urged employees to broach the subject, no matter how awkward it feels. An employment commitment releases you from the vagaries of at-will rules. He added that high-tech recruits often have the bargaining power to negotiate a severance package. Often, technology employers ask new employees to sign a nondisclosure agreement and a noncompete clause. "If an employer says no to a severance agreement, it's an opportunity for the employee to say, 'If I can't work in my industry of choice, pay me to sit on the sidelines,'" Klingshirn said.
- Know the laws of your state. Although federal statutes may not provide much help for at-will workers, each state passes additional laws to protect employee rights. For example, California requires employers to provide all wages due, including accrued vacation time, at the time of termination. For a rundown of individual state laws, see Cornell University's Legal Information Institute Webpage (www.law.cornell.edu/topics/Table_Labor.htm), which has links to each state.