Leaving not so simple

When one leaves a job, voluntarily or not, it's never as simple as walking out the front door. Financial and lifestyle considerations abound, as these workers discovered.

Q: I worked for a local employee-owned telemarketing operation but left voluntarily to take another job in the same field because the employer declined to promote me to a management position that had been promised me. At the time I left, I was entitled to a profit-sharing payment that had become due and payable. But it had been postponed by the company because it was short of cash.

When the payment was finally made to other workers, about two months after I left, I asked the company for my share, which had been earned during my tenure there. I was told I wouldn't be paid, that one must be a current employee to collect a profit-sharing payment. Was this fair, or even legal?

A: Lots of corporate actions may be unfair, but Debra Katz, a Washington lawyer who represents workers in disputes with their employers, said the company in this case may well be within its rights to withhold the profit-sharing payment to the departed employee.

The worker said that when the profit-sharing first came due, the company told employees, "You'll get your money, but we're not sure when," and that it was planned to give the money to full-time employees at the time.

Katz said the key consideration is whether the payment was for work the employee did or part of a standard profit-sharing arrangement that benefits a broad range of workers. In this case, the worker said the payment was not for work he did.

"If it's a commission, then he earned it," Katz said. "You pay someone based on what they did," such as selling a house or car.

But she said that "if it is a profit-sharing plan, it's a discretionary plan that the employer pays to people who are there. They can probably get away with not paying it" because the worker left the company.

"A company can certainly condition these payments based on staying there," she said. "He may have an argument if the money was promised -- an oral contract -- and he wasn't told he had to stay. But it's probably not a very strong case."

Q: I want to get away from the area for many quality-of-life reasons, but I love my job and I'm darn good at it. I have managerial responsibilities but would be willing to give them up and take a small salary cut. How would you recommend I approach my boss about my desire to move but retain most of my position, and not risk getting sacked in the process?

A: Palmer Suk, president of Snelling Personnel Services, a recruiting firm in Vienna, Va., said the worker might first recall if other personnel had worked out such transfers to the mutual benefit of the employee and the company. "Then you could cite the success of that person," Suk said.

Regardless, Suk suggested that the worker keep his lifestyle wishes to himself and instead approach his boss "with the mind-set of proposing this in terms of what's in it for the company."

"Do a little research," he said. "Look for where there might be weak points" in the company's operation. "Look for opportunities within the company where there's a need and tell the boss what you could bring to the table."