Employment Contract Lawyers: Drafting, Negotiation, And Violations
Approaching an employment contract for the first time can be tough for both employers and employees, especially with the many federal and state laws governing this relationship. From minimum wage requirements and exempt and non-exempt classifications to anti-discrimination laws that require reasonable accommodation by the employer, drafting employee contracts can be difficult for even the most senior HR professionals. Employment contract negotiations are difficult for employees, but are equally demanding for employers. We recommend that you consult with an employment contract attorney at our firm who knows exactly what constitutes permissible contract provisions in your state, and contract violations that can subject an employer to civil liability.
Employment Contract Services Our Firm Provides
- Draft employment contract
- Employment contract negotiations
- Breach of contract lawsuits
- Non compete agreement
- Non disclosure & confidentiality trade secret protection agreement
- Severance agreements
- Executive employee contracts
We provide comprehensive employment contract writing, compliance, enforcement, and negotiation services for employees and companies alike.
What should an enforceable employment contract contain?
Ideally, an employment contract should clearly set out the expectations and responsibilities on either side of the transaction, as problems can abound when miscommunication occurs. Depending upon the industry and scope of employment, an employment contract may contain everything from working hours and confidentiality provisions to the employer’s raise and bonus structure. For example, an employer may want to tie bonus payments to productivity measurements or other objective metrics; and as long as this bonus structure isn’t designed or administered in a manner that discriminates on a protected basis (like age, sex, race, religion, ethnicity, national origin, or disability), and the employee is compensated at least the federal minimum wage, this type of contract provision should be permissible under federal and state law.
Employment contracts can also contain termination procedures. For example, employers may require employees to provide more than two weeks of notice before accepting a new job, or spend time training their replacement; again, as long as these types of clauses are freely entered into, they’re generally upheld.
What types of employment contract clauses are prohibited under federal or state law?
- Misclassification of employees
- Loss of anti-discrimination protection
- Waive employer negligence, prohibit right to file a personal injury claim
- Workers compensation denial if subscriber
There are some provisions of federal and state law that cannot be waived by an employee — meaning that even if an employee consents to an action taken by the employer, the employer will still bear liability.
One example of this is the misclassification of an employee as exempt or non-exempt (or as an independent contractor rather than an employee). Even if a worker agrees to be incorrectly classified in exchange for a higher pay rate or other tangible benefit, the employer may still be deemed in violation of the Fair Labor Standards Act or related laws.
Employers also can’t waive their own negligence, so a contract provision that prevents an employee from suing the employer (or filing for workers’ compensation benefits) after being injured due to the employer’s negligence is also unlikely to be upheld.
While unenforceable, these provisions won’t usually subject an employer to civil liability unless it can be shown that they caused the employee to engage (or refuse to engage) in some behavior that would not have occurred if not for the unenforceable contract provision.
What negotiations should occur if there are problems with parts of a contract?
Employment contract negotiations are necessary when you are not comfortable with any provision. Encountering unenforceable or illegal provisions in an employment contract can be a tough situation for any employee, as bringing these issues to the employer’s attention can be awkward at best and an invitation for retaliation at the worst. However, employees may be able to use their negotiating powers to have these provisions removed (or changed into enforceable ones) simply by pointing out the applicable laws and why the provision(s) at issue could pose a problem if the contract were ever the subject of litigation.
What recourse does an employee have for an illegal employment contract or breach of a valid contract?
The procedure an employee should follow to enforce a contract provision, or report or prevent enforcement of an illegal provision, depends on the circumstances of the specific clause.
Reporting Wage, Hour, Misclassification & Unpaid Overtime Violations. If an employer is attempting to enforce unlawful wage and hour requirements for example, misclassifying an employee as an independent contractor or exempt employee not entitled to overtime pay, the complaint may be lodged with the U.S. Department of Labor’s Wage and Hour Division (WHD) or state equivalent.
Reporting Discrimination, Sexual Harassment, or Wrongful Termination. Situations in which a worker is the victim of employment discrimination, harassment, sexual harassment, or has been terminated on a discriminatory basis may instead require the employee to pursue a complaint with the Equal Employment Opportunity Commission (EEOC).
Reporting Employer Breach of Contract. And for cases in which an employer has breached an employment contract on grounds not covered by the EEOC (like termination on the basis of age, sex, or racial discrimination), a private lawsuit in federal or state court may be necessary to receive financial compensation in a lawsuit for breach of employment contract.
Contact an Employment Contract Lawyer to Draft, Negotiate, or Enforce Violations