Try Guys: Who The Heck They Are and Why They Were Right

 Lots of folks (like me) saw the Saturday Night Live sketch about the Try Guys and said, "Huh?" I had no idea they were a thing. I assumed that they were made up. I was wrong. So I did some research. Turns out I wasn't the only one going WTH. 

I'll start out with who they are. They're YouTube sensations who try things. Yep. They try stuff and post videos of them trying the stuff. Women's underwear, jousting, cooking. Miscellaneous stuff. That's it. Apparently they make money doing it. About $6 million a year. Which makes me question all my life decisions.

Now the sketch. SNL made fun of the Try Guys for firing the one known as the "wife guy". He is so known as the married persona that he has published a cookbook with his wife, and did an Architectural Digest home tour with said spouse. He was caught making out with a woman who works on a Try Guys spinoff called Food Babies. 

SNL made fun of the firing, but I think, based on what I've read on this, that the Try Guys were probably right in firing him, looking at the employment law issues involved.

Sexual harassment: Since Food Babies is a spinoff, I'm guessing the original four Try Guys had some supervisory authority and decisionmaking power over the Food Babies. But it was consensual! some will cry. But is it really? If someone has supervisory authority, there's an imbalance of power and there's always an issue of pressure. Think Bill Clinton and Monica Lewinsky. Think about The Morning Show, which dealt with this kind of pressure pretty well in the first year's plotline. If it crossed the line (and I obviously don't know for sure whether or not it did), and if they investigated and determined that there was some wrongdoing, they are now on notice of his propensity to enter into such relationships with subordinates. They could be liable in the future for punitive damages if they do nothing and he does it again.

Damage to employer: I bet he has an employment contract. And it's not unusual for entertainers to have a morals clause saying they can be fired if they do something to damage the show or the brand, they can be fired. And since his brand was "wife guy" and he has potentially damaged the $6 million click-dependent show, they likely had the right to fire him.

So, yeah. He kissed a girl and it seems like that shouldn't get you fired. But sometimes, it's exactly what could and should get you fired.

Could he have some defenses? Sure. It depends on how his contract is written. But SNL got this wrong. It was not a laughing matter.

Is Your Offer Letter A Contract? Of Course It Is

I see offer letters that make a specific job offer and then say, by the way, this isn't a contract. Guess what? Offer plus acceptance equals contract. I don't care what that disclaimer says, it's still a contract.

Now, what the contract means is another thing. It may say you're at-will, which means they can fire you for any reason or no reason at all. Some states have exceptions to the at-will doctrine. In all states, at-will still doesn't affect your rights under discrimination and whistleblower laws.

Your offer letter probably has your starting position and salary listed. That means the employer is bound by this once you accept. If you're at-will, they can change it, but luring you in with a promise of a management position and high pay and then making you a minimum wage janitor is not only a breach of contract, but is likely fraud.

The offer letter probably also lists benefits and other terms. You are bound by the terms, as is your employer.

Of course, if you sign a more detailed agreement when you start, then the offer letter may be no longer in effect. Most contracts say they supersede all prior contracts. Be careful to read what you sign, especially that giant pile of papers they give you when you start. Don't sign something you can't live with.

If it turns out that the employer had no intention of living up to its deal when it made the offer, such as offering a nonexistent job or benefits, then you could have fraud claims along with your breach of contract claims.

So make sure to keep a copy of that job offer. If it's an email, print it and keep it. Keep anything you sign. It may be a contract, and it might come in handy later. It might also contain post-employment obligations you have to comply with such as a noncompete agreement.

If there's something you don't understand in the offer, make sure you get clarification before you accept. Offer plus acceptance equals contract. If the company is bound, so are you. Pay attention to what you are agreeing. If you don't understand it, get legal advice from an employee-side employment lawyer before you accept.

Inclusion Riders Are A Good Idea In All Types Of Employment Agreements

Frances McDormand made an impassioned plea during her Oscar speech for more diversity. She mentioned the term, "inclusion rider" at the end of her speech. So what is an inclusion rider, and can it be used in non-Hollywood employment agreements?

The idea of the inclusion rider is that stars with lots of negotiating power can help those with little or now power by protecting them in the stars' contracts. So including things like equal pay for costars, diversity in cast and crew, and other clauses to protect coworkers can bring about change in Hollywood.

But would it work in other employment agreements?

I think that it could work for folks who are highly sought-after and who have lots of leverage to negotiate. While those people are rare, they do exist. If you have special skills or recognition in your industry that make you a desirable property, then you could put your money where your mouth is and negotiate to protect your coworkers.

Here are some things you could demand to be added to your employment contract if you are one of the superstars with leverage, and that could make a huge difference in workplace fairness:

• Diversity: While you probably can't demand any particular percentage of racial, gender, LGBT, disability or other diverse employees, because that would also be discrimination, what you can do is demand that your employer recruit in places that provide a more diverse pool of applicants. Recruiting at colleges? Include those schools with a majority of minority students. Placing ads? How about placing ads with AARP, NAACP, and other organizations that have diverse members in addition to the ones in more traditional media?
• Noncompetes: You can negotiate to not have a noncompete in your own contract, but what about your team? You can insist on a clause in your agreement that noncompetes won't be imposed on your coworkers.
• Fair pay: What about a clause that requires pay to be reviewed for your colleagues annually and compared to similar positions in the industry? That requires all colleagues holding the same job title and seniority be paid the same? Prohibiting inquiries about prior salary in job interviews?
• Sexual harassment: You could force the company to take sexual harassment complaints seriously. Include a clause that people making a harassment complaint will be entitled to a full investigation, including interviews of the accused harasser's former subordinates/coworkers. State that the victim will be entitled to be told the full results of the investigation and what, if any, steps the employer took to make sure the harassment won't recur. Include that any retaliation, including ostracism, transfers, demotions, firing, harassment of the victim will result in swift punishment.
• Bullying: Make them adopt and enforce a policy of zero tolerance for bullies. That alone would make a huge difference in your new corporate culture.

These are just a few possibilities. Get creative. So, what issues are important to you? If you talk the talk of diversity and inclusion, and if you are a superstar with negotiating power (don't even try this if you're an entry level worker or someone with no leverage), then you can put your money where your mouth is and negotiate a contract that makes sure your coworkers have fair treatment at work. Wouldn't that make your workplace so much better?

Does Your Severance Agreement Have A Gotcha? Penn State Sues Former President For Hiding Sexual Molestation Charges

I see this kind of language in proposed severance agreements all the time. Something to the effect of, "Employee represents that he is unaware of any violations of any law, statute, ordinance or government regulation by Employer, its agents, employees, officers or directors." There are all kinds of problems with this seemingly benign language, as Penn State's former President may be about to find out.

You see, Penn State is countersuing Graham Spanier, who sued them for breach of his severance contract. Their claim is that Spanier knew of the former football coach's sexual misconduct and didn't disclose it. They say he had a duty to disclose. And if he had language in his severance agreement representing he didn't know of any legal violations by any of their employees, they may be right.

If he's in breach of his severance agreement, they may not have to pay the severance, or may get to demand he repay all or part of it.

The more common problem I see with language like this is that the severance agreement was presented after the employee raised issues of discrimination or blew the whistle on some illegal activity. My cure for that is to add to the clause, "that he hasn't already disclosed." That way, if he's disclosed race discrimination, unpaid wages or any other issues, he isn't lying that there were no such issues.

However, if you have any such language in your agreement, you'd better make sure you have disclosed every single legal violation you know of. Otherwise, you could be in trouble.

I'm not sure if Spanier's contract has this language. They seem to be alleging that he defrauded them by not disclosing material information, and that had they known he covered up Sandusky's misdeeds, they wouldn't have entered into the agreement. That's a whole 'nuther kettle of fish. Fraud is tough to prove. If they're trying to negate his contract based on fraud or some duty to disclose, I think they'll have a difficult time.

This case is a cautionary tale for anyone thinking about signing a severance agreement. Read it carefully and make sure you comply. If you can't, or it says something that isn't true, ask that it be changed before you sign.

Is My Noncompete Contract Superseded? Which Contract Applies?

This reader question was left on my post Non-Compete Agreements - Top 5 Ways To Get Out of Yours:

Hi Donna, I am in the State of PA and had signed two year non competes to get options grants. I left the company under a voluntary separation agreement and part of it was a 1 year non-compete Agreement. Question is does the latter 1 year non compete supersede the 2 year Agreement. Also the Agreements are broad and cover the entire globe - what if I have not worked in the potion of the globe where I may work for the last two years? 

 The first thing I do when I look at a severance agreement for an employee who signed a noncompete is the clause at the end that probably starts with something like, "This is the entire agreement between the parties . . ." The reason I do that is because whether older agreements are still in effect depends on what this clause says.

If it says that it's the entire agreement between the parties except for the noncompete agreement, then the noncompete in the older agreement probably still applies.

If it says it's the entire agreement between the parties and can't be modified except by a writing signed by both parties, with no other modifier, then the old agreement vanishes. I've seen entire noncompete agreements vanish this way. In your case, you have new obligations that supersede the old ones. But in some cases I've actually told the employee to sign the agreement speedy quick before the employer realized that they just lost their noncompete. Can you say malpractice for the lawyer who drafted that one?

If it says that it's the entire agreement between the parties related to the subject matter of the agreement, then in your case the old one goes away. However, if it's a severance agreement without the noncompete language then the question will be what a court thinks the subject matter of the agreement is. I'd argue that the subject matter of the agreement was the obligations of the employer and employee post-termination and that it's gone. Would a judge agree with me? I don't have a crystal ball.

Of course, you're in Pennsylvania and I'm in Florida, so Pennsylvania lawyers might look at this completely differently. I'd love to hear from some of you in the comments. I'd suggest talking to an employment lawyer in your state before you sign.

 

If Your Contract Says It Isn't A Contract Is It A Contract?

A reader asks this question in the comments to my post Non-Compete Agreements - Top 5 Ways To Get Out of Yours

In 2012 my husband started working for a contractor. As a subcontractor he signed a subcontract agreement. In which case has schedule of payment as 45 days net and the non compete agreement. As he did sign it but in bold letters it states THIS IS NOT A BINDING CONTRACT AND CAN BE TERMINATED ANYTIME FOR ANY REASON. In 2013 he got let go because they butted heads. (not because he did bad work). Its now been over 125 days and yet still no payment. Does that mean the non compete still applies?

 You gotta love a contract that says it isn't a contract and isn't binding. I actually see this all the time in employee handbook acknowledgements that employees have to sign. I like to point to this language when the employer turns around and tries to enforce noncompete language in the handbook. My conversation usually goes something like this: "Hello? You put right here that it wasn't a contract. Are you saying it is now? Because then I think my client has claims for your failure to follow the progressive discipline policy, along with a bunch of other claims for your failure to follow your own policies." That is usually met with a bunch of muttering under the breath and a quick, "I'll get back to you."

I can't say I've ever seen this kind of weaselly language in a document called "contract" or "agreement." This raises an interesting question. If the document's title says it's a contract, but the language in the document says it isn't a contract, then what the heck is it?

The one thing it isn't is a contract. That means, IMHO, that your noncompete obligations in the document are also not a contract that they can enforce. Would a judge agree with me? Maybe. The issue, if they had the nerve to sue over this non-contract contract, would be the intent of the parties. I assume the employer will say something like, "I meant that it was terminable at will, not that the noncompete part wasn't a contract." I don't think this would fly, since any ambiguity is supposed to be construed against the drafter.

The other issue is the failure to pay all sums due. Once they breach a contract (assuming it's a contract) then your obligations should be null and void. Again, I can't guarantee a judge would agree with me, but there's plenty of case law in Florida on this and presumably every other state has similar cases. This is basic contract law - once a party breaches a contract, the other party's obligations vanish.

If you haven't been paid wages due, then you probably also have claims under your state's unpaid wage laws, unjust enrichment, wage theft, breach of verbal contract, or some other legal theory. You should talk to an employment lawyer in your state about what claims you have and let them review your agreement to see if they agree that your noncompete may not be binding

7 Claims Jonathan Martin May Have Regarding Dolphins Bullying Under Florida Law

Now that America finally woke up and realized that workplace bullying is a serious issue, thanks to the Miami Dolphins situation with Jonathan Martin, who quit after the team refused to do anything after he complained about workplace bullying, I thought I'd share my thoughts on the situation from the perspective of a Florida employee-side lawyer.

As I've written before, there is no state in the nation that has passed any law against workplace bullying. We have zero tolerance for bullying in schools, but nothing to protect employees? What a giant waste of corporate resources and time, to deal with the fallout, morale problems, and loss of good people that bullies cause. It's time to pass a law.

In the meantime, I have some theories about what claims Mr. Martin might have under Florida law if/when he decides to sue over this matter. I recently wrote a piece for AOL Jobs called 5 Ways Your Workplace Bully May Be Breaking The Law (call me prescient - the piece came out less than 2 weeks before the incident) where I talked in general about potential claims employees might have relating to workplace bullying.

While I obviously don't know what really happened, there has been lots of press speculation and reporting on what really happened with Martin. I can only speculate on what claims he might have.

Here are four claims I think Martin might have against the Dolphins:

1. Breach of contract: Surely he has a contract. It must say something about his working conditions. These athletic contracts are huge. If the contract says the Dolphins must provide a safe working environment, it's a straight breach of contract case.
2. Race or age-based harassment: Bullies tend to target the weak and the different. If Mr. Martin was targeted due to his race or because he was "too young" as the reporting tends to speculate, then he might have a discrimination claim. While the Age Discrimination in Employment Act doesn't cover discrimination based on being too young, the Florida Civil Rights Act covers all kinds of age discrimination. Harassment cases require that you report the harassment and give management a chance to correct the situation, which it seems he did, and was told to punch the harasser, which he thankfully didn't do. The questions will be 1. whether it was so severe or so pervasive that it altered the terms and conditions of his employment and 2. whether it was so intolerable that no reasonable person would have stayed. Having quit, he'll have to show that he was constructively discharged, which is tough, but not impossible. It looks like the coaches might have actually encouraged the harassment. If so, the Dolphins may well be on the hook.
3. Assault/battery: If anything got physical and management knew about it, then the Dolphins might be on the hook.
4. Intentional infliction of emotional distress: This is the one I see in all the newspaper articles about what kind of claim he might have but, truthfully, these cases are very tough to win in Florida. He went to the hospital for emotional distress, so he might have some pretty significant damages if he can prove this claim.

I usually recommend against bringing claims against individuals because they're almost always uncollectable even if you win. That's probably not the case against a wealthy football player, so Mr. Martin may have claims against the individual or individuals involved.

Here are 3 claims he might have against his harasser(s):

1. Tortious interference: I wrote awhile back about using tortious interference claims against harassers. Maybe this would be a good situation for that. The question will be whether the harassers stepped outside the scope of their employment. If management really instructed them to do this, then the harassers might argue they were acting within the scope of their jobs.
2. Assault/battery: If it got physical, he can sue for whatever damages he suffered.
3. Intentional infliction of emotional distress: Again, tough in Florida but maybe if things got physical or extreme he could sue his harassers for this.

I'm interested to hear any new facts that come out on this. While I'm sad this happened to Mr. Martin, some good could come out of all this of we get some anti-bullying laws passed as a result. If even a big, tough football player can be devastated by bullying, imagine what ordinary mortals who experience bullying must go through.

So, what do you think? Any other legal theories? Should workplace bullying be made illegal?

Stand Up For Yourself Without Getting Fired

I thought I'd share with you today an interview I did with TJ Walker, who is an excellent media trainer with a regular internet TV show. We talk about my book, employment contracts, noncompete agreements and how you can negotiate a better severance package with your employer.

Ta da! My first video embed. I'm very excited that this worked. Maybe I'll actually figure out one of these days how to embed some videos I did where I actually appear on the video. . .

Lies Your Employer Tells You

Employees, for the most part, believe everything their employer tells them. Most of the time, your employer's interests and yours coincide. You have a job to do, and they want you to do it. But sometimes, those interests collide. Sometimes, you have to take what your employer says with a grain of salt. Other times, they're flat-out lying.

Here are some lies your employer may tell you, and why you shouldn't believe them:

You have to resign: Flat-out lie. Nobody can make you quit your job. They may want you to sign a letter of resignation. That means they probably get out of paying unemployment, and may be able to convince a judge or jury that you left willingly instead of being forced out. Don't resign unless you're getting a severance package or something else that makes it worth it.

Sign this and you can keep your job: Depends on what it is. If you're told by the Risk Management guy who locked you in a room for hours and accused you of stealing that you can keep your job if you admit to stealing, it's a lie. You'll be fired and possibly arrested as soon as you sign. If it's a noncompete agreement, there are states that allow your employer to say, "sign or be fired." My state, Florida, is one of them. Some states don't allow this. Check with an employment lawyer in your state before you give up your right to work for a competitor.

These are never enforced: Horse hockey. Flat-out lie. Why would your employer ask you to sign an agreement that's never enforced? It's because they think it will be enforced. Anyone who tells you otherwise is a liar. Before you sign something you think won't be enforceable, check with an employment lawyer in your state.

We'd never do that: Flat-out lie. If your employer is trying to get you to agree that you give up your copyright to your novel, your rights to the video game you're designing in your spare time, or your LinkedIn contacts, they're lying if they say they would never actually invoke that part of the agreement. They wouldn't ask you to sign it if they didn't intend to enforce it.

We've never enforced this before: That may be true, but it doesn't mean you won't be the first. If they don't intend to enforce a noncompete, an intellectual property agreement or other provision, they shouldn't have a problem deleting it. Otherwise, assume the worst.

We're here to help: HR may tell you they're the employee's friend. They may be able to help you as long as your interests align with the company's, but they exist to protect the company, not you. You may have to report sexual harassment, apply for FMLA leave, or seek disability accommodations through them, but that doesn't make them your friend or ally. Do what you have to do, but put it in writing. Cover yourself. You can bet HR is covering the company.

Those are just some of the lies you may be told at work. Don't be fooled. Can you think of other lies your employers have told you? I'd love to hear about it.

Why Did the Lawyer Put This in My Severance Agreement?: The Cooperation Clause

This continues my series of posts deconstructing the legal gobbeldy-goop in employment agreements. Today I'll talk about a clause I often see in severance agreements: the cooperation clause. It may look something like this:

Employee agrees to cooperate with Employer in connection with any legal matters, if so requested by the Company, including agreeing to make himself available at the Employer's request to assist with matters requiring the provision of information and/or testimony.

Yikes! My clients never like this and neither do I. And really, what good do most employers think is going to come from having an employee they axed testify on their behalf? My first response is usually to ask that this be taken out of the agreement. However, management-side attorneys love these clauses, so here's what I usually do that will work.

First, I ask for language something like this:

Such cooperation shall be arranged so as not to interfere with Employee's employment and/or business.

That way I don't have to worry about the jerk employer who says the employee has to come in during the key sales meeting, the peak busy time, or their first day at a new job. If the employer wants cooperation, they can arrange it after hours or on a weekend so the employee doesn't get fired from their new job. If they want a deposition, same thing. Depositions can be scheduled to work around times that will get the employee fired from their new job. Without this language, the employer can say, "Tough tookies," when the employee cries foul.

The other language I ask for is that the employee be paid for their time. While they probably can't be paid for their time testifying, I want to make sure my client doesn't become an indentured servant forced to help their former employer respond to complicated discovery requests or submit to endless deposition preparation sessions. Even if it's a deposition, the employee should be compensated for their expenses, such as parking fees, gas mileage, and other out of pocket expenses incurred in this cooperation.

Forcing an ex-employee to work for free probably violates the Fair Labor Standards Act in any event, so even if payment isn't in this clause, an employer who goes too far with their demands might run afoul of the Department of Labor.

Why Did The Lawyer Put This In My Settlement Agreement?: Tax Indemnification

This will continue my series of posts about deconstructing the legalese in employment contracts. This week I'll discuss some language I frequently see in severance or settlement agreements when at least some of the money being paid isn't having taxes withheld. The clause will look something like this:

Employer makes no representation as to the taxability of the amounts paid to Employee. Employee agrees to pay federal or state taxes, if any, which are required by law to be paid by Employee with respect to this settlement. Moreover, Employee agrees to indemnify Employer and hold it harmless from any interest, taxes or penalties assessed against it by any governmental agency as a result of Employee's non-payment of taxes on any amounts paid to Employee or Employee's attorney under the terms of this Agreement.

The reason the employer wants this language is that most employment law settlements are for back wages, future lost wages, or severance, which are wages. Wages must have taxes withheld and the employer has to pay its share of employment taxes on them. If the IRS should come back later and claim more (or all) of it should have been wages, the employer wants the employee to agree they'll pay both the employee's and the employer's share of employment taxes on this.

I'm unusual in the way I request settlement money be paid to clients. I usually ask that the employee's portion be paid as wages. I have a couple reasons for this. First of all, no matter how many times I tell the employee to set aside about 1/3 of the money in a CD that comes due on April 1 so they can pay their taxes, it's too tempting to spend the money. I've had too many people call me crying in April that they can't pay their taxes. Second, if IRS should determine that the money should have been wages, my clients can't afford to pay their employer's share of taxes on top of theirs. It's a risk that I usually don't recommend.

Now, let's go back to this tax clause. I used to not object to it being added as is. If my client asks that some of the money be set aside as something other than wages, they should be willing to take the risk that they got it wrong. (On the other hand, if the employer insists that some portion of it be designated compensatory damages or emotional distress damages so they can save money, I insist they take this language out). I say I used to agree because I actually had one employer, after the fact, argue that this clause meant they could withhold the employee's federal income tax and employment taxes, then not pay them in, plus they said they didn't have to pay in their share of employment taxes on the wages amount.

It's probably an only-in-South-Florida thing, but still, this kind of jerkish behavior means I have to change the language in the future. Here's what I now ask employers to add to this clause:

This provision shall not apply to Employer's obligation to pay in amounts withheld and its share of employment taxes on the amount paid pursuant to paragraph ___.

The blank, of course, is filled with the subparagraph that sets out the amount being paid to the employee as wages.

When the attorney's fees are being paid, I insist they be paid separately because they aren't wages. Under the Civil Rights Tax Fairness Act, which used to be part of the mostly-rejected Civil Rights Tax Relief Act, they are still income to both the client and my firm. However, the client should be able to take an above-the-line deduction on their tax return (whatever the heck that is - ask your accountant) so it comes out as a wash.

Basically, there's no way to structure an employment law settlement so any portion of it isn't taxable, at least that I've ever heard of. There have been efforts to pass the Civil Rights Tax Relief Act for decades, all of which have failed. This law would make emotional distress damages tax-free. If you think it's wrong to tax emotional distress damages, which makes it harder to settle employment cases for both employers and employees, talk to your member of Congress.

In the meantime, expect to see these tax indemnification clauses in your agreements, and beware unscrupulous employers who try to use them to force you to pay their share of taxes.

Why Did The Lawyer Put This In My Contract?: Confidentiality

This will continue my attempt to explain some of the legal mumbo jumbo in your employment contract, and why the lawyers put it there. Today, I'll talk about confidentiality. You may see a sentence or two in your agreement that look something like this:

I promise that I will keep all matters relating to this Agreement confidential and that I will not discuss, disclose or provide information concerning any term of this Agreement to any person or entity, except to my spouse, my attorney, my accountant or tax advisor, the Internal Revenue Service, or pursuant to a subpoena.

This is fairly typical one-sided confidentiality language that your employer's attorneys like to stick into most agreements.

Here's why your employer's lawyer put the confidentiality clause in the agreement: 

It's very simple. They don't want you to tell coworkers about the money you got, or your terms of employment. If they put it in your offer letter or employment agreement, they are trying to keep you from telling colleagues what you make, what benefits you are getting, and whether you have anything cool in the agreement like severance, termination for cause only, or bonuses.

If they put it in your severance agreement, it's because they don't want you to tell your former coworkers that you got severance, how much, if you got any extras like health insurance, and if the company waived your noncompete.

If they put it in your noncompete agreement, they're pretty silly. What's the point of having a noncompete you can't show potential employers? Smart management-side lawyers put in language that you must show the noncompete to potential employers. That way, if you violate it, they can come after the competitor and you. How can they come after a company who can prove you weren't allowed to show it to them and therefore they couldn't have been on notice of it?

Here's what you should ask for:

If your employer wants you to keep the agreement confidential, they should too. Most employers (I'm talking about you, HR departments) leak like sieves. There are no secrets. You'll get blamed for blabbing even if your supervisor or HR is a gossip and can't keep a secret. If the confidentiality provision is mutual, then the company will usually read the Riot Act to anyone who knows about the agreement and threaten them within an inch of their employment if they gossip. I've never had one leak that I know of with a mutual confidentiality clause, but I've seen plenty of leaks with one-sided clauses.

Your employer will tell you that it's in their best interest to keep it confidential, and they have no incentive to tell. True for the company, but not true for a person in the company who likes to play I Have A Secret.

If the provision is in your employment agreement and you aren't in management, your employer might have a problem. The NLRB is taking the position that agreements prohibiting employees from discussing working conditions are a no-no. The National Labor Relations Act, which is what NLRB handles, doesn't cover supervisors, so the company can still get away with this language once you are in management.

Watch out for damages

If the provision is in your severance agreement, they'll try to stick in some heinous penalty if you violate, with no similar provision for themselves (because, of course, they'd never violate confidentiality). They'll say if you violate you must return all of your severance, or that you have to pay liquidated damages of something like $5000. Don't agree to that if you can help it. I actually sat through a witness deposition of a person who wasn't testifying the way the employer would like, so they asked her if she'd told anyone about her severance agreement. She admitted she'd told her mom. The lawyers indicated that she'd violated her confidentiality agreement and they would be coming after her. Can you say witness tampering?

Anyhow, it's tempting to tell immediate family members, fiances, domestic partners or someone else who isn't included in the language about who you can tell. If you violate the agreement, let the employer prove they were damaged. I'd like to see them prove they were damaged when you told your dad.

If you really can't get them to budge on the liquidated damages and can't afford to tell them to go pound sand, then think about who you can't resist telling and make sure they're on the list. If you're going to tell your fiance or domestic partner, list them. It's way tempting to hurt someone after a breakup by calling the ex-employer and telling them you know everything, so make sure you zip it if you aren't allowed to tell. If the employer agrees to include them, the employer will want to include language that you'll tell them about the confidentiality and you'll be liable if they breach, so be careful who you tell.

It's tempting to tell people how you got a great deal, how much more you make than that jerk over in the corner, or how much they paid you when you left. That's why the company put a confidentiality provision in your agreement. Don't give into temptation once you agree to confidentiality. Your former employer will very possibly come after you if you blab.

Why Did The Lawyer Put This In My Contract?: The Merger Clause

I negotiate and review a whole lot of contracts. I've been doing it so long that I forget some of this stuff looks like gibberish to normal people. By normal, I mean non-lawyers, of course. I thought I'd pick out some regular legal gobbledy-gook and deconstruct it for you here. Today, I'd like to talk about the merger clause, also called the integration clause. You may see something that looks like this in your employment agreement, severance agreement, noncompete agreement, or other contract your employer hands you to sign.

This document contains the entire agreement between the parties. This Agreement cannot be modified unless an authorized representative of the company and I agree to do so in writing. 

 Looks harmless enough. The language is pretty clear, right? It's the whole agreement between your employer and you. You can't change it and neither can they unless you both sign a new piece of paper modifying the agreement or canceling it.

And yet, it's an incredibly important two sentences.

Here's why your employer's lawyer put the merger clause in the agreement:

Your employer wants the language because they don't want you to claim that they promised you a big bonus two months later, or that they told you not to worry about that noncompete stuff. Their lawyers put it in so they make sure you can't come after them based on a side verbal agreement.The language is there to protect your employer.

But it also protects you.

Here's why you should care about your merger clause:

Let's say you sign an employment agreement that has a noncompete provision, something that says you can't work for a competitor for a year or two. The agreement also sets out your salary, benefits, and job title. It says you can be fired at-will, meaning you can be fired for any reason or no reason at all.

Scenario 1: You work 6 months and then your employer tells you that they can't afford your salary anymore. The new salary is a 10% reduction of what they promised in the agreement. You can take it or leave it. You can't afford to lose your job, so you take it. You never sign anything agreeing to the change. When you get a job offer from the competitor, you take another look at the employment agreement. You realize the employer has breached the agreement on your salary. Their breach may be a complete defense to the enforceability of the noncompete provision. No, it isn't a magic wand that makes it go away. But you have a pretty good defense, and they might owe you money to boot.

Scenario 2: After a year, the employer drops its insurance coverage because it's too expensive. But they never have you sign anything agreeing to modify your contract to agree to this. They're in breach of the contract. You might have another defense, and they might owe you the money you have to pay for insurance.

Scenario 3: You're fired. Your employer hands you a severance agreement offering 2 weeks of salary in exchange for a release. It also has a merger clause saying it's the entire agreement between the parties. The new agreement doesn't mention your noncompete obligations. You decide to accept the 2 weeks and move on. You get an offer from a competitor. Can you take it? You betcha. The old agreement is gone with the wind. Your former employer might have a malpractice claim against the lawyer who forgot to have you reaffirm the noncompete obligations in the new agreement, but they have no claim against you.

Who knew two sentences could mean so much? Now you know why lawyers put merger clauses into your employment agreements, and why every sentence matters.