Chicago Executive Lawyer Blog
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If you’re an executive and have direct reports, you should make sure you have your company’s HR department on speed dial.  As much as you may be tempted to handle complicated employee problems on your own, HR is there to help.  Not only can HR help make sure your employment practices comply with existing law, but HR can also help you navigate various employment issues with ease.

When should you consider contacting HR?

Contact HR when you hire a new employee

The hiring process can be a legal quagmire.  What can you ask about during an interview?  What promises can you make in an employment contract?  Can you ask your new hire to sign a non-compete agreement?  What tax and immigration paperwork do you need?  Don’t go it alone and contact HR as soon as you consider hiring someone new.

Contact HR when you discipline a new employee

There are many best practices to follow when disciplining an employee and HR can help.  HR can advise you on the type of documentation you need to help support your decision to discipline.  In general, the more documentation you have, the better protected from legal liability you may be. 

Contact HR when you fire an employee.

Like the hiring process, firing an employee can raise a host of important practical and legal issues.  Should you offer a detailed termination letter?  Should you offer severance?  Do you have to pay an employee for unused vacation time?  Should you agree to give an employee a positive reference?  Again, HR can help.

The intricacies of management can be complicated enough without worrying about legal problems.  Don’t hesitate to leverage your company’s HR department to help keep you compliant. 

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Even though the economy has been steadily improving, looking for a job can still be very disheartening.  Especially for executives, a job search may last weeks or even longer.  Above all, it is important to stay positive and think strategically about how you can accelerate your job search.  This post describes five ways that you can re-energize your job search in the new year.

Revamp Your Resume

While it’s essential for your resume to be accurate in every way, it is more than just a fact sheet about your life.  Use active, persuasive language to explain your experience and how you helped contribute to your previous employers.

While it may be cumbersome, you may consider using multiple resumes if you are targeting more than one employer in your job search.  Highlight the experiences and skills that would be most relevant to each potential employer.

Sharpen Your Skills

If you have been out of school for a long time, you may not be fully aware of new developments in your field.  Consider taking a continuing education course that will help you to become more competitive in your field.  Your new skills can also be a great conversation starter during your next interview.


Not only does volunteering allow you to give back to the community, it is a great way to network with fellow volunteers.  If you are trying to change industries, volunteering may even give you the opportunity to gain valuable, on-the-job experience. 

Work with a Professional Career Coach

Especially if your other strategies have not panned out, working with a professional career coach could prove to be an excellent investment.  A coach could help you come up with a custom plan to help you take the next step in your career.

Find New Ways to Network

Networking can be more than just attending professional events.  Sites like LinkedIn can be a great resource for networking.  Email listserves relating to your chosen field can also be extremely helpful.  Be creative and branch out.

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Job searches suck.  There is nothing worse than sending a document that attempts to meticulously describe the professional you out into the abyss and never hearing back.  And, even when you pivot, stop sending out cold resumes, and start working your network, sitting with strangers and trying to sell them on your skills is not much more fun.

Why No Offer?

There are tons of reasons why some people remain unemployed for extended periods and others don’t.  Sometimes the reason is illegally discriminatory (i.e., age, gender, race, sexual orientation, parental status, religion, disability, national origin, etc.).  Sometimes the reason is legally discriminatory (i.e. bias against the unemployed, bias against the overweight, bias against the style challenged).  Sometimes the reason is a lack of skill or training.  But, many times, job seekers are in control of the factor that most influences whether they will find another job:  attitude.

Look Forward

We have represented hundreds of executives who have had claims against their former employers.  Whether resolutions are litigated or negotiated, it is always the executive who looks forward and takes control of his/her career that moves on to something better.  Being angry and holding onto blame about a bad separation or even a bad interview doesn’t hurt the employer.  It hurts the job seeker.  Have you ever had to interact with someone who has a chip on her shoulder?  Would you want to be that person?  The top 3 reasons you’re not getting hired all relate to your attitude.  You can’t change the biases of prospective employers, but you can make yourself a pleasure to be around.

Top 3 Reasons Your Attitude is Preventing You from Being Hired

  1. You are not engaging with the right people in the right way.  Job search networking does not mean you should tell everyone you know that you are looking for a job.  You should not be sending everyone your resume.  The right way to engage with your network is to be a resource for your contacts.  People want to help people who want to help them.
  2. You’re getting desperate.  Looking for a job is like dating or making friends.  Desperation is a turn-off.  It’s one of those things you silently communicate without even noticing.  It shows in your resume, cover letter and emails.  And, most obviously, it shows in your body language.  You might think that being an executive puts you beyond this, but you are wrong.  Executives are the most at risk of unknowingly communicating desperation.  People who devote so much time to their career and even define themselves by their career are very likely to be shaken by a job loss.  It can be an ego buster for anyone.  The best way to overcome this hurdle is to contact a brutally honest friend, videotape yourself, or hire a professional and practice role playing.  You don’t want to come off rehearsed, but you do want to be prepared and confident.
  3. You’re too cocky.  Over confidence is not much better than desperation.  No one wants to hire someone who clearly thinks they are too good for the job.  Humility is not desperation.  Be willing to ask questions, listen to the answers and learn.  Over-confidence means you are focused inward.  Show that you are truly interested in the prospective employer, its current employees and its opportunities for growth.  Do your research and be prepared with thoughtful questions.

Even though we solve legal problems first, we want our clients’ careers and businesses to thrive.  If you are struggling with your job search, contact us for additional resources.

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To begin the new year, we want to focus on job transition strategies.  As the economy begins to improve, many executives find that it is worth the risk to see what other opportunities may await them in other organizations.  You have probably made several resolutions for the upcoming year, and if one of those resolutions involves finding greater job satisfaction and security, it may be the perfect time to look for a new job.

This post will offer some suggestions, as well as potential traps to avoid, as you begin your job search.

Keep your job search confidential

Until you are completely certain that you will be transitioning to a new organization, the confidentiality of your job search is key.  Taking basic common sense precautions, such as not using electronic equipment in your office to copy and transmit resumes, are in order. 

If you ultimately decide to remain in your current job, these steps will help avoid an awkward situation with your boss and coworkers.

Consult your employment agreement

Many executives sign employment agreements at the beginning of their tenure with a company or at other points during their employment.  Your employment agreement could contain a restrictive covenant, or a clause restricting what you are able to do after you end your employment with the company. 

The most troublesome restrictive covenant is a non-compete provision, which restricts your ability to work for a competitor of your employer in a certain geographic area for a certain period of time. 

Assuming that the non-compete provision in your contract is legally enforceable, you should be sure that the job you’re considering would not cause you to violate that non-compete provision.  If there is the chance of a violation and you still wish to proceed, you should strongly consider advising your new employer of the possibility of litigation over the non-compete provision.

Consider the question of severance 

If you have an employment agreement, it may grant you the right to a severance payment, even if you resign from your job. 

If you are entitled to severance, you should make sure that you follow all of the steps required under the agreement for receiving a payment.  These could include providing sufficient notice of your departure and cooperating with the company in offering transition assistance. 

Do not burn bridges 

If you do transition away from your organization, do your best to keep that transition civil.  If you are able to maintain a strong relationship with your former workplace moving forward, your future career prospects will be that much stronger. 

If you are thinking about making a career transition, or if you have questions about your employment agreement or a non-compete provision, you may want to consult with an experienced employment attorney.

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Time and time again, studies show that the old adage that it’s easier to find a job while employed than unemployed is true.  If you’ve decided it’s time for a change, the best time to search for a job is while you are still employed by your current employer. 

This begs the question, how does one go about searching for a new job while employed?  After all, searching for a new job is time consuming and can feel like a full-time job. 

Here are some tips to help you if you’ve decided you are ready for a change.

Keep your job search quiet

It may be difficult to keep things quiet, especially once you start having some promising interviews, but it is very important you keep your job search quiet. 

Even if you are careful to keep your search a secret from your boss, office gossip can spread quickly, be cautious about sharing details with co-workers or friends in the office. 

If your boss catches wind that you are leaving, he or she may prematurely begin planning for your successor and you could end up in the unfortunate situation of being let go from your current employer before you have another offer in hand. 

Here are some steps to take to keep things quiet:

  • Don’t search or apply for jobs at work
  • Refrain from posting about your job search on social media
  • Continue to dress in line with the company dress code.  This may mean changing in your car or a public bathroom for an interview
  • Don’t use company email addresses, phone numbers or fax for your job search

Use your lunch hour

If you have the ability, try to move your lunch hour to outside of the noon – 1pm window.  This will allow you to have some time to schedule interviews with potential employers.

You should also use your lunch hour to network.  Schedule lunches with contacts to try to get your foot in the door and learn more about potential job leads.    

Time block

Finding the time to actually craft a tailored resume, cover letter, and other necessary documents is often the hardest part of finding a job while employed. 

A good way to handle this is to block off an hour each week to devote to your job search. Think of this as an important meeting you cannot reschedule and block it off on your calendar. 

Review your employment contract

Do you have a non-solicitation clause or a non-compete clause in your current employment contract?  Such clauses can limit you in your new position. 

It’s important to make sure you understand your current employment agreement so that you can take appropriate steps and make appropriate disclosures to new potential employers so as to avoid any threat of litigation. 

Photo Credit: Kate Hiscock via Flickr Creative Commons

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Age discrimination is prohibited by both the federal Age Discrimination in Employment Act (“ADEA”) and the Illinois Human Rights Act (“IHRA”).  Both Acts affect employers with fifteen (15) or more employees.  To receive protection under the Act, an employee must be forty (40) years of age or older.  It is not unlawful under the Act for an employer to favor an older worker over a younger one.

It is generally illegal for an employer to discriminate against an employee on the basis of age with respect to hiring, firing, pay, job assignments, promotions, layoffs, training, benefits, and any other term or condition of employment.  It is also unlawful to subject an employee to harassment on the basis of age.  Discrimination may occur even if the decision-maker (or the harasser) and the employee are both over the age of 40.

In order to establish a claim, an employee who is terminated may have to prove that he or she was replaced by a younger worker.  In addition, it can be difficult to establish age discrimination unless the employee can prove that his or her employer made multiple age-related comments.  Some comments, even when not directly related to an employee’s age, can still be “code” for age discrimination.  These comments may include remarks such as “you don’t keep up with technology,” or “we need to bring in a more energetic generation.”  Frequent questions about an employee’s plans for retirement may also be indicative of age discrimination.

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Many executives call our offices looking for help when they have been discharged.  They were strong performers who didn’t do anything wrong, or maybe had a minor infraction and never even got a written warning.  They are certain that because of their strong performance, they can’t just be fired, right?

Wrong.  The status quo in Illinois is that employment is at-will.  This means that employment may be terminated at any time for any reason, or even no reason.  However, this does not mean that employers are given free-range to fire as they please without repercussions.  There are some protections which employees have.  When employers terminate employees for these protected reasons, it is known as wrongful termination. 

Wrongful termination is termination from employment for an illegal reason.  Here is a list of some of the most common illegal basis for termination:

  • Discrimination on the basis of a protected characteristic, such as race, gender, religion, age, disability, national origin, etc. 
  • Complaining about improper compensation practices
  • Retaliation for Whistle-blowing

Employees subjected to wrongful termination may be able to recover damages, including back pay, legal fees, emotional distress, and punitive damages. 

It’s not always clear whether an employee has been terminated for an illegal reason or not.  The stated reason is not always the true reason for termination.  A knowledgeable employment attorney can help you determine if you have suffered wrongful termination. 

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No. That is the simple answer to the following questions: Can I be fired for my race, gender, disability, national origin, or for being at least forty (40) years old? Can I be fired for my alien status? Can I be fired for making a complaint that my employer violated the Occupation Safety and Health Act (“OSHA”)? Can I be fired for refusing to take a lie detector test? Can I be fired in retaliation for making a complaint to my employer that I am facing discrimination? Can I be fired for refusing to do anything illegal for my employer, or for making a report that my employer is violating public policy?

While many employees, even executives, are at-will – and can be terminated for almost any reason – federal law protects employees so that they cannot be fired in certain situations.

An employer cannot terminate any employee for a discriminatory reason because federal law protects certain classes of people. Thus, an employer cannot fire someone for the individual’s race, gender, disability, national origin, or if the person is at least forty (40) years old.

In addition, the Immigration Reform and Control Act prevents an employer from firing an employee due to the employee’s alien status.

Pursuant to the Employee Polygraph Protection Act, an employer also cannot fire an employee that refuses to take a lie detector test.

Federal law also prevents retaliation, and protects employees that make complaints regarding discrimination. For example, an employer cannot legally fire a female employee because she made complained the employer discriminated against her due to her gender. Notably, she would not have to prove that discrimination actually occurred. Instead, she has to prove that her employer fired, or retaliated against, her for making a complaint about the discrimination.

Similar to protections for general retaliation, an employer cannot fire an employee for making complaints about OSHA violations, or the employer’s violations of health and safety standards.

Finally, an employer cannot fire an employee when the termination would violate public policy. Thus, an employer cannot fire an employee that refuses to engage in any illegal activity, an employee that makes complaints regarding an employer’s illegal activities, or an employee that uses his or her legal rights, such as taking medical leave.

Ultimately, being an at-will employee does not provide an employer with carte blanche to terminate individuals. An employer cannot fire an employee for a discriminatory reason, in retaliation when an employee exercises his or her legal rights, or in violation of public policy.

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Terminating an employee is one of the most difficult tasks to undertake as a manager. Done well, and you will help move your former employee out of the organization with a clear, fair message about why he or she is leaving. Done poorly, and you may send your former employee packing with (at least the specter of) potential claims against your company. Below are several steps to avoid to help ensure that your former employee transitions smoothly.

Don’t fire an employee without warning.

If possible, give the employee an opportunity to correct subpar behavior before resorting to termination as a disciplinary action. Though there are some actions that require immediate termination (theft or violence, for example), many performance issues can be addressed with proper coaching and a bit of patience. Provide written warnings to allow the employee to correct his or her behavior. Consider placing the employee on a Performance Improvement Plan []. These steps will help determine whether the employment relationship can be salvaged and create documentation that will support the reasons for termination. Additionally, this will ensure that the employee is not blindsided with termination, allowing the employee to make transition plans of his/her own to minimize disruption in work and income.

Don’t fire an employee over email or another form of communication. Face-to-face is highly recommended.

Have the courtesy (and courage) to fire the employee face-to-face. If an in-person meeting is not feasible, find a way to video conference. Written communication is devoid of emotion and could lead to mixed or unintended messages. Terminating an employee solely in writing precludes the expression of any non-verbal communication (such as facial expressions that convey empathy or compassion) that could help to soothe an otherwise disgruntled person. This is not to say that you should not memorialize the termination by letter; indeed do. Nevertheless, deliver the news in person, too. Face-to-face communication is truly the only respectful way to have a serious conversation about one’s livelihood.

Don’t deviate from your script.

Prior to meeting with the employee you will terminate, work with your attorney and/or HR person to draft talking points to communicate the reasons for termination to the employee. Though you should not read to the employee, do not deviate from these reasons, even if you feel that there are multitudes of others that legitimize the employee’s firing. It is important that you (and other members of your team) remain consistent about the reasons for termination, especially since in some circumstances courts have viewed shifting explanations for an employee’s termination as circumstantial evidence of discrimination.

Don’t allow the employee to leave with any company possessions.

Ensure that you have recovered all items belonging to the company from the employee before he or she leaves the premises – including electronic devices (phones, computers, hard drives, flash drives), keys, documents, supplies, and any other proprietary items or information. Obtaining these items prior to separation is much easier (and less expensive) than after.

Don’t allow the employee to have continued to access to any company applications or information systems.

A disgruntled former employee could potentially wreak havoc on your organization if he or she is left with unfettered access to your company’s applications or information systems. From obtaining confidential customer/client information to removing sensitive proprietary data from your organization, the ways an employee could exact revenge for his or her firing are endless. A best practice is to eliminate access to company data simultaneously with the termination conversation and offer to collect any non-company data the employee may have stored on company devices following the meeting.

Don’t end the termination with a sour note; try to provide words of encouragement.

Having a genuinely empathetic attitude and demeanor will help convey to the employee that you understand the seriousness of the action that you are undertaking and the impact that it will have on that person’s life. Offer the employee encouragement by identifying a trait, skill, or strength that might help lead the employee to his or her next endeavor.   The adage, “it is not what you say, but how you say it” could not be more true when it comes to employee terminations. Choose your words carefully to minimize the possibility of liability to your company.


It is always best to consult with an advisor prior to undertaking a difficult employment-related task such as an employee termination. He or she can help you determine when termination may be appropriate, craft an outline of the termination conversation, and determine whether to offer severance or some other benefit in exchange for a release of any claims the departing employee may have against your company.

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Many executives would likely admit that handling employee terminations is their least favorite part of the job. The process can be unpleasant, emotionally charged, and worse, it can subject an employer to legal liability if mishandled. If you are considering terminating an employee, this post provides practical advice on how to carefully document your decision and carry out the termination. These steps can help you avoid common problems, both from a legal and practical perspective.

  • Check your documentation. Have you previously disciplined or written up the employee? Make sure that you have adequately documented the reasons for the termination. This will help make sure that the termination does not come as a complete surprise to the employee, and will also help to support your position in the event of any litigation relating to the termination.
  • Prepare a termination letter. It can be helpful to provide the employee with written notice of his or her termination. If there were multiple reasons for the termination, however, it can be difficult them all in the written termination notice. For this reason, it may be best not to include any of the reasons for termination in the notice rather than risk missing something critical. In any event, since most workers are employed on an at-will basis, the employer is not required to have or to give a reason for the termination at all.
  • Decide whether to offer the employee a severance payment and prepare a severance agreement. There are many reasons why offering severance in exchange for a waiver of all legal claims can be beneficial. It can help make the separation much easier if the employee knows that he or she will have some income during the transition period. In addition, it can help achieve closure for your business if you know that the employee will not be able to assert any legal claims against you in the future.
  • Plan the day of the termination and termination meeting. Be sure to collect all company property from the departing employee, cancel credit cards, and change passwords and access codes as necessary. If you intend to have a termination meeting, invite at least one neutral witness who does not have any other outside information about the situation. If you present a severance agreement to the employee at the termination meeting, advise the employee that he or she should feel free to consult with an attorney about the severance agreement prior to signing.