Employment Agreement

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The familiar adage says, "He who has himself as his lawyer has a fool for a client". In the arena of employment, if you are not a lawyer looking over your own employment contract, you may very well be foolish, if not a fool, for not at least familiarizing yourself with the role, the core elements, forms and pitfalls of employment agreements.

Because they can be quite complex and indeed confusing, employment agreements are vulnerable to simple human error, as well as to human trickery.

A contract clause that specifies you will get a salary review "if.." is very different from one that says you will get a salary review "only if...". In fact, the latter is a much worse deal for an employee than the former, because "only if" specifies a necessary condition for a salary review, not a sufficient condition.

Hence the "only if" contract offers no guarantee of a salary review, even after you satisfy the "only if" condition, e.g., "only if the employee has worked six months".

A word to the wise: When in doubt, seek the advice of the legally wise.

If you're just signing up for a new job, you have probably been offered an employment agreement as part of your new-hire paperwork. Sometimes, things are more casual: a handshake, one's word or a wait-and-see approach are enough for some employers and employees. However much warmth and trust such arrangements offer and celebrate, they don't provide complete protection for either party.

The all-important employment agreement is the contract that specifies the relationship and terms for your employment with the company. It may include terms about a non-compete, non-solicitation, guidelines for behavior, intellectual property, and other important concerns. Before signing or designing the structure of an employment agreement, it is advisable to seek the guidance of a legal professional or expert industry connection. It is also wise to familiarize yourself with the various elements and forms of contracts and be prepared for subtle differences and distinctions in their terms.

Among the pitfalls to avoid are assuming that mere encouragement, such as, "You seem right for the job!", will suffice to seal the contract, when a lack of any documentation reduces disputes to "he said-she said" losing battles over recall, vagueness or ambiguity.

Likewise, it may be a big mistake to assume that quitting is just a matter of saying so, if, in fact, the contract specifies that termination by the employee shall be by fax, and, if mailed, postmarked no later than some specific date, etc.

The standard elements that define a valid contract include offer, acceptance, consent, capacity, clarity, certainty, consistency (consistency with the law, of meaning and with logic) and consideration-the latter being some benefit(s) for each party, allowing that the benefits may, in some instances, not be dollar-denominated, e.g., unpaid internships.

Consistency with the law ("lawful object") means that agreement to work in a crystal meth lab is not a valid, legally enforceable contract. Likewise, a translated contract that specifies it is void if not in the original language is going to be logically problematic.

An employer's saying, "Let's draw up the agreement" should not be confused with the joint signing of that agreement, which is far likelier to be binding (given the presence of all other elements of a valid contract).

On the other hand, the existence of what are called "quasi-contracts" or "implied contracts" (in fact vs. in law) necessitates getting expert legal assistance in determining whether or not surrounding circumstances and actions have created a contract, even in the absence of anything said or signed.

In addition to familiarizing yourself with contract law, it is imperative that you pay close attention to the logic of an employment contract's wording, since through innocent error a contract may be drawn up that is unintentionally unfavorable to you. For example, "The employee shall work no more than 40 hours per week, only if promoted to a managerial position" is very different from "If promoted to a managerial position, the employee shall work no more than 40 hours per week". The former, unlike the latter, logically guarantees nothing.
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