Corporate / Employment Lawyer

Recommendations
1

My previous experience with a Swiss lawyer (related to my employment coming to a forced end) was ‘meh’.

He was clearly competent and I was fine with the eventual outcome of the negotiations with my employer, but what I did not appreciate was his constant focus on the limitations of the law (for instance telling me I should really not complain about the package I was offered as it was above the legal minimum already) rather than helping me to strategize on how to maximize my return. He did not fully grasp that dealing with a US counterpart you need to be a little bit more assertive for them to increase their payout.

At times, it almost felt like I wasn’t paying him but that he was some impartial judge just trying to come to a reasonable compromise and that he thought I should not push for more. And trust me, I was paying him a lot!

While I had thought that this case had come to a full end, a new issue has arisen with my prior employer and I am now seeking a new lawyer who does grasp that clients want to leverage their position for the maximum advantage.

More specifically, I am seeking a lawyer

  • who understands employment law but also is aware of the distinction with corporate law
  • who has a specific understanding of the position of employees who are also a statutory director given that I am no longer an employee but am still a managing director in an entity belonging to my former employer
  • who works for employees (not just for corporates)

Any recommendations?

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2

I don’t use enough lawyers to make recommendations. But I would also like to have better access.

It shouldn’t be so hard to find professional services conforming to custom quality requirements. But maybe the base adversarial relationship between customers and experts makes it so. Especially in markets with one-off relationships and no brands.

Since you feel able to judge their quality, maybe you can filter them yourself? First consultations are often free, so you only lose your time (but maybe more for a wrong choice).

Alternatively, maybe a lawyer would know colleagues? Maybe you can pay one to give you some names plus explanation why they would fit your criteria. Just make sure they can’t directly gain from this (not themselves, not from same company).

Lastly, maybe you need to be more upfront with your wants. Did you talk with your lawyer why they weren’t doing so? A possible reason would be that more than the minimum was exactly what it was worth to the opposite side to avoid litigation.

Since you ask for names: Where could one find your clearly competent lawyer?

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A Swiss (European) lawyer is not an American/English lawyer. Swiss/European law is not identical to English common law, which relies heavily on case law, not the law itself. We tend to look for similar cases to prove our case, whereas Swiss/European law evolves with the cases to update its laws. As a result, a lawyer, like a judge, is limited by the law. This doesn’t mean that he can’t try harder, but it often happens that trying harder leads to more problems and can be detrimental to his client, because a judge is much less conciliatory and above all is not bound by the arguments of both parties.

I don’t know the specifics of your problem, but if you actually got a little more than the minimum you can consider yourself lucky.

At times, it almost felt like I wasn’t paying him but that he was some impartial judge just trying to come to a reasonable compromise and that he thought I should not push for more. And trust me, I was paying him a lot!

A lawyer must put himself in the shoes of a judge, i.e. how a judge would handle the case before him in order to arrive at the “right” legal solution. If you have found a lawyer who can do this, then you have found a very good lawyer, because very few lawyers can put themselves in a judge’s shoes, and often those who can’t put themselves in a judge’s shoes and think like a judge do a lot of harm to their clients, but they say it’s the judge’s fault.

This is hard to find in the big law firms in Switzerland. In fact, the following firms: Homburger, CMS, Lenz & Staehlin, Schellenberh & Wittmer, Bär & Karrer, Kellerhals Carrard, MLL are highly competent in many areas of law, but their clients are often legal entities. They will defend individuals, of course, but they will always have a “corporate” look.

Athough, I can recommend you to take one of them as you will be in really good hand. You will also pay a lot…

Where do you live?

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4

Thank you for your well thought through response.

I’m directionally familiar with the cultural difference between US and Swiss law.

Nonetheless, there’s also the aspect of understanding your ‘opponent’, being aware of what is critically important to them, and leveraging that to your maximum advantage. Additionally, there are different cultural approaches to negotiation. My experience is that in general in Europe people will come with a reasonable first offer and it provides a decent starting point to tweek things whereas in the US the first offer is more often unreasonable and you then have to come with a similarly unreasonable counter offer to eventually wind up in the middle.

Not at all looking for an ‘ambulance chaser’ but more a judo practioner so to speak.

I live in Kastanienbaum. Location is less relevant as these cases typically can be discussed over the phone.

The case involves a company purposefully and for an extended period of time sabotaging the ability of a statutory director to fulfill his fiduciary duties. The company is foreign owned thus has the mistaken assumption that terminating somebody as an employee also covers removing their statutory rights/obligations… never mind personal risks/liabilities which come with that. Hence the need for a lawyer at the cross-section of employment/corporate law but open to work for an individual rather than on the corporate side.

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I’ll share that info once my current issue has been resolved.

There were other factors at play than the risk of litigation. Think confidentiality, non-compete, non-recruit, non-disparagement, etc. but let’s not go into the details here.

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6

Blesi & Papa

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7

You might get what you need by hiring 2 law firms. One in the US to drive what you need and one in Switzerland who the US lawyer will consult with and run options by to bring in the local factor.

Obviously, this will get expensive quickly and esp. if you do not mediate the interactions and let them discuss with each other without supervision as then they easily run up the tab together.

Or you can try to look for an all in one e.g. contact the Swiss firms and ask whether they have someone who also qualified as a lawyer in the US (probably quite rare) or at least has someone who grew up there (and so maybe has the US culture).

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8

As a side question for future reference: For less complicated setups, like a layoff of a regular, middle-aged employee, communicated as due to business reasons, how much room is there for any lawyer to negotiate or argue for?

Anything above a 3-6 months of garden leave or severance pay, if that’s beyond the notice period and there’s no proof of discrimination or any restricted period?

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Let’s for the sake of the argument assume that the company is no sympathetic to you specifically or benevolent in general (for instance because any above statutory minimum payout to you will reduce other people’s bonus payout). Let’s also assume you don’t qualify for some of the Swiss rules around employees at an elevated age close to retirement and other very special cases.

Then, in principle, they won’t have to pay you anything above and beyond your notice period. However, if a company terminates your employment then effective immediately restrictive clauses in your employment agreement (such as non-compete) cease to have effect. So, depending on your role you knowledge, whether your employer is fearful of negative consequences (such as US firms often are), that is the typical ‘hook’ to get a sizeable severance. You get a payout on top of your notice period in return for agreeing to various restrictive terms.

One other way to leverage your position (be careful how you phrase it though) is by making clear that in the default scenario

  • Company sends you on garden leave
  • You do not sign any separation agreement (thus no severance payment, no more validity of restrictive clauses, maintaining full rights re sick leave, etc.)
  • And… here’s the crux… you’ve been having medical issues for some time so let your employer know that the default scenario of not signing an agreement is much better for you as you can see a real risk of going on extended sick leave during your notice period (this means delaying the exit, maintaining salary for a longer time, possibly qualifying for another bonus or equity vesting, etc.)

Normally, that last point coupled with a desire by employers to avoid having to go to court, will trigger a severance offer. That can then be enhanced if they are fearful that you’ll go to a competitor, will still key people away, etc.

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This is in effect what my (now prior) employer did. They hired a very expensive US based law firm which did not have a Swiss office. I know because I was able to figure that out through the file properties of a draft agreement they had sent to me and then seeing the author of the agreement was connected to the CHRO on Linkedin. I suspect this explained why they had made so many errors during the first steps and suspect they subsequently hired an additional Swiss firm to get them back on course. These mistakes enabled me to grab them by the proverbial balls, but that’s another story.

For me, it’s not an expense I want to take on. My issues will be governed by Swiss law and as long as the Swiss based lawyer understands the mindset of the opponent (US based, terrified of issues going to court, terrified of an issue blowing up to embarass a remaining executive who’d rather just use some of the shareholders money to make the issue go away,etc.) then it should be adequate.

11

Let me respond to this a second time with a more structured ‘how to’

Step 1 (do this long before you actually get terminated)
a) Determine your notice period (from your contract)
b) Determine if that notice period gets you to still qualify for bonus / equity vest
c) Determine which restrictive employment contract terms would drop immediately once terminated
d) Calculate how many extra $$$ you’d get if you’d not sign a proposed termination agreement and for arguments sake get sick during your last month of notice period (you can extend your employment this way, which may also qualify you for additional bonus/equity grant deadlines)

Above is your ‘base line’.

Step 2 (I recommend doing this before you get terminated, i.e. when you can start to see the writing on the wall): get a lawyer to review your employment contract and any other staff policies which are relevant (especially comp/ben related - think car lease, gym, etc.)

Step 3 - you have just been told you’re employment is being terminated: do not sign ANY document your employer puts in front of you when you get terminated without first taking a few days to think it over and having your lawyer review it

Step 4 - do the math… is the offer provided under step 3 more or less attractive than just not signing anything? Keep in mind they might include things in your offer which you’ve already earned or would qualify for anyway so pull those out (e.g. bonus payout on a certain date)

Finally, but that goes outside of the scope of this thread, there’s also the matter of financially optimizing a severance. E.g. pay it into 2e Saule, etc. to position you better for financial support from RAV.

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12

If it’s a mass layoff, social plan negotiations can have quite a bit of leverage (but it depends if there’s a CLA in place, and if there’s employee representative). (But might also take ages since there’s no deadline for reaching arbitration).

Often unions can provide support from their lawyers (assuming some of the representatives are members).

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I see - no experience from my side in such a case.

I imagine the company will apply a rules-based approach to determining everybody’s package. That can be a positive or a negative.

Worthwhile checking into tax consequences. I vaguely recall that if certain conditions are met a severance may be handled differently (more advantageous to employee).

14

Let’s be realistic: If you are a normal employee, i.e. the 99%, you will not have any leverage, don’t need a lawyer, and won’t get anything beyond what the law (or social plan negotiated by the employee representatives) mandates. The only thing that might prolong your employment/garden leave is if you fall sick during your notice period. If you are a sales employee or had access to customer date you can leverage that and should get some prolonged payment for a non-compete.

And then there is the entirely different story if you are a high-level executive, having access to key stakeholder and being registered as managing director or similar. Bonus points if you have insights into nasty internal politics and secrets, extra bonus points if you worked for a listed company. That is when you need a lawyer and can expect a large payout, way beyond what the law mandates or most might imagine.

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@1742 fair assessmeent

My assumption with my responses was that the readers/posters on this forum are well above ‘average’ in terms of position/income.

“insights into nasty internal politics and secrets” - this is indeed an entirely differnt aspect as well… even more so if you have awareness of real ‘pain points’ for one more more key decision makers. In any case, that gets into a very murky area and best not discussed on a public forum.

16

Thanks for these comments, that’s indeed a good structure.

That’s what I understood, and which is where the questions comes in what a lawyer could achieve with limited leverage.

Even garden leave would be considered a concession. Add some months on top, and the company would argue that’s already very accommodating. Obviously, while stressing again how this is purely out of good will and the termination is indeed purely business related.

In my experience in large companies, contracts are pretty standardized, at least for most levels of the hierarchy. Of course, there’re different rules or bonus plans for various management levels, but non-competes are rare, and all employees are bound by confidentiality, anyway (plus specific NDA’s where needed).

I did read about some examples where a court ruled for abusive termination afterwards. But the result was like 2-3 months of severance.

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In CH you aren’t getting paid for the termination itself, because it’s a free labor market. Even for an actual wrongful termination I have never heard of anyone getting more than 6 months of notice period. What we are talking about here is getting paid to walk away without making a fuzz and shutting up about it.

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That’s what I meant: If a termination could possibly be wrongful, but you already get offered as much or more as you could likely hope for in court, there’s no point in consulting a lawyer and make a fuzz.

What I understood Butch meant is to indicate you could make a fuzz in order to get a better deal. In which case a lawyer might well add some ideas or credibility.

19

My experience (with large corporates, US ones in particular) is that there is almost always a general concern about a termination becoming messy (e.g. going to court, impacting the broader organization from a morale perspective, becoming a drain on time for HR) and that’s mitigated by just committing to more $$$ upfront rather than having to deal with the pain of that mess.

Then there is (assuming you have leverage) the extra $$$ for commitments expected from the employee (e.g. non-compete).

And then there is the extra $$$ for the ugliness that the employee can create if (s)he goes out of his/her way to make it ugly.

In all cases, a lawyer can help to avoid mistakes AND to capitalize on mistakes by the employer. E.g. play a role in getting rid of BS in a reference letter, highlighting risks with unreasonable terms, and also identifying opportunities to squeeze the company for more $$$ (while the Swiss labor law is liberal, there are still certain procedures which need to be followed; for example, in my case, a key letter had been sent to the wrong address which created space for more $$$).

The lawyer also gives peace of mind that you’re not making any stupid mistake.

I’m not a lawyer, and am not pushing for lawyers, but am glad I spent the money. In my case, I also had done a lot of online research but the lawyer still brought new insights. What also helped in my case is that I had the termination agreements for a lot of other people (most of which I had signed myself) so knew exactly what to look for.

Capitalism is great. The corporate world has given me a lot. But I am not naive that it’s a jungle. I prefer being prepared.

20

You should be careful not to burn too many bridges. I worked for a firm where we paid someone to get them out. In hindsight, I should have known better. I met a former colleague of hers by chance in a non-work setting and she warned me “stay away from her, she’s bad news”.

I had no idea what this meant, until she was fired (she was apparently utterly incompetent) and she’d basically whipped out a book which she’d obviously prepared since the day she joined with every possible transgression noted in it in great detail.

I was hauled into HR since I also appeared in the book. My crime? I have restless leg syndrome and had at one point taken the same training course as her. For one of the sessions we were at the same table and my jiggling leg vibrated the table and she was not able to concentrate the the training course and therefore this was one reason cited for her sub-par performance. WTAF?!

Anyway, I knew we were cooked when I left the meeting and saw a manger ready to be next. He was a character and known for loudly making jokes in bad taste that was borderline back then and in today’s PC times would never fly. I felt bad for him as he did make jokes in good humour, but they would not have translated well in written form…

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