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    Backdating employment

    Like any good David Letterman top ten list, this one starts with number 10 and is designed to help you think through what, when, and how to document employee performance. Not Knowing the Audience – Workplace feedback usually has two primary purposes: 1) to inform the employee of the concern and exactly what is needed to address it and 2) to create a record that explains the history.As such, the audience is the offending employee and potentially a jury or factfinder.A quick examination of the cases against Brocade clearly identifies why backdating is synonymous with fraud, even though no U. The practice involves using hindsight to assign a stock-option contract an earlier date than its actual grant date.By pushing the date into the past, to a time when the underlying stock traded at a lower price than it did the day the grant was issued, the option holder is, in effect, being given the promise of cash.

    According to a study by Erik Lie, a finance professor at the University of Iowa, more than 2,000 companies used options backdating in some form to reward their senior executives between 19.You’ve heard it one hundred times; you know it like the back of your hand. In working with employers faced with a difficult employment situation, the first thing the attorney wants to see is the documentation.If the key in real estate is location, location, location, the key in employment is documentation, documentation… Clients tell me they find this confusing, especially for those who are “at-will” employees because “can’t we fire those employees for any reason or no reason as long as it isn’t an illegal reason? However, in a worst case scenario, three years later, what is the jury going to believe: a witness who is now a former employee herself and has a bit of a grudge or a well-documented pile of unemotional paper that was written at the time, detailing the concerns with the employee’s poor performance?That promise is considered to be an in-the-money options grant.In-the-money options are different from performance-based compensation in the eyes of the Internal Revenue Service and the Financial Accounting Standards Board.

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