Employment Agreement

Question

NOTE: YOU DO NOT NEED TO FILL IN ANY OF THE BLANKS. Use this agreement to answer the questions.
This Employment Agreement, entered into this __________ day of __________, 20__, by and between _________________________, hereinafter referred to as the “Employer,” and _________________________, hereinafter referred to as the “Employee,”
Whereas, the parties desire to enter into this Employment Agreement to establish the terms and conditions of the Employee’s employment with the Employer;
Now, therefore, in consideration of the mutual covenants set forth below, the terms and conditions of this Employment Agreement are as follows:
1. Position; Employment Period
The Employer hereby employs the Employee as a(n) _________________________ (title of employment position,) with the following principle responsibilities listed below:
The Employee shall not be assigned duties and responsibilities that are not generally within the scope and character associated with or required of other employees of similar rank and position in the Employer’s industry.
The Employee hereby agrees to serve in such capacity for the time period beginning ____________________, 20__, and ending according to the terms and conditions listed in Section 8 below. The employee’s period of employment established by this Employment Agreement is hereinafter referred to as the "Employment Period.”
2. Performance of Duties
The Employee agrees that during the Employment Period he shall devote his full professional time and attention to the business affairs of the Employer, subject to the Employer’s direction, and he shall perform his duties loyally and productively, giving his best efforts to contribute to the Employer’s success.
3. Compensation and Non-Salary Benefits
Subject to the following provisions of this Employment Agreement, the Employee shall be compensated for his services during the Employment Period as follows:
a. He shall receive an annual salary of $_______________, payable in equal monthly installments, subject to such increases as may from time to time be deemed appropriate by the Employer;
b. He shall receive the following pension and other non-salary benefits listed below:
c. He shall receive annual vacation time of _______________ weeks, with the exact dates of such vacation time subject to the approval of the Employer; and
d. He shall be entitled to benefits as may be customarily granted by the Employer to employees of similar title and responsibility.
4. Competing Businesses
During the term of his employment under this Employment Agreement, the Employee shall not be employed by or otherwise participate in any business that either is or might become engaged in competition with the Employer, or with any of its subsidiaries or affiliates, except that the Employee's investment in any such business shall not be considered a violation of this paragraph if the Employee owns less than __________% of the equity of such business.
5. Confidentiality
During and after the Employment Period, the Employee shall not divulge or misappropriate for the purposes of his own use or for the use of any person or organization that either is or might become engaged in competition with the Employer, any trade secret or confidential information or knowledge pertaining to the Employer’s business, or to any of the Employer’s subsidiaries, obtained by him in any way while he was employed with the Employer.
6. Remedies
If at any time during the term of the Employment Agreement the Employee violates any of the provisions and obligations set forth in paragraphs 2, 4, and/or 5 above, the Company shall have the right to terminate all of its obligations to make further provisions of salary and non-salary benefits specified in this Employment Agreement. The Employee acknowledges that the Employer would be irreparably injured by a violation of the provisions and obligations set forth in paragraphs 2, 4, and/or 5 above, and agrees that the Employer shall be entitled, at its discretion, to seek an injunction and/or any other equitable remedy restraining the Employee from any actual or threatened breach of paragraphs 2, 4, and/or 5 above. In addition to the equitable remedies set forth in this Section, the Employer shall also have the right to recover any incidental and/or consequential damages resulting from the Employee’s breach of this Employment Agreement.
7. Amendment
This Agreement may be amended or cancelled by the mutual agreement of the Employer and the Employee without the consent of any other person or organization, and so long as the Employee lives, no person, other than the parties hereto, shall have any rights under or interest in this Employment Agreement or its subject matter.
8. Termination
The Employment Period shall terminate at the earliest of the following specified events:
a. ____________________, 20_____ (Indicate a termination date, if agreed upon by the parties);
b. the last day of the month in which the Employee's death occurs; or
c. the date on which the Employer gives notice to the Employee of termination “for cause” or due to the Employee’s disability.
For the purposes of this Employment Agreement, “for cause” means termination of the Employee’s employment due to the Employee's gross misconduct resulting in substantial damage to the Employer, or due to the Employee’s willful and material breach of this Employment Agreement.
9. Notices
Any notice required or permitted to be given under this Employment Agreement shall be effective if it is in writing and if it is sent by registered mail, return receipt requested, to the Employer at its principal office or to the Employee’s last known residential address.
10. Non-Assignment of Employee Interests and Rights
The interests and rights of the Employee under this Employment Agreement are not subject to the claims of his creditors, and may not be voluntarily or involuntarily assigned, alienated or encumbered for the benefit of his creditors.
11. Successors
This Agreement shall be binding upon, and inure to the benefit of, the Employer and its successors and assigns and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Employer's assets and business.
12. Applicable Law and Choice of Venue
The provisions of this Agreement shall be construed in accordance with the laws of the state of _________________________. In the event that a dispute between the Employer and the Employee cannot be resolved by way of informal settlement and/or alternative dispute resolution such as arbitration or mediation, litigation between the parties shall be tried in the state court system of _________________________.
IN WITNESS WHEREOF, the Employee has hereunto set his hand, and the Company has caused these presents to be executed in its name and on its behalf, all as of the day and year first above written.
________________
Employer Name
__________________________________________________________
Signature of and Title of Duly Authorized Employer Representative
(Signing For and On Behalf of the Employer)
__________________________________________________________
Signature of Employee
THE STATE OF __________________
COUNTY OF _____________________

Subscribed, sworn to and acknowledged before me by _________________________, the Employee, and ___________________________________ (name and title,) an authorized representative signing for and on behalf of the Employer, this the __________ day of __________, 20_____.

(Seal) (SIGNED)_________________________
NOTARY PUBLIC

My commission expires: ______________
~~~~
4. Provision 8. Termination. (20 points)
The Employment Period shall terminate at the earliest of the following specified events:
a. ____________________, 20_____ (Indicate a termination date, if agreed upon by the parties);
b. the last day of the month in which the Employee's death occurs; or
c. the date on which the Employer gives notice to the Employee of termination “for cause” or due to the Employee’s disability.

Part “c” states that an employee can be terminated “due to the Employee’s disability.”

Q1. Who is protected against employment discrimination? As it relates to disabilities.

Q2. What is "reasonable accommodation?"

Q3. What practices and activities are covered by the employment nondiscrimination requirements?

Q4. What kinds of actions are required to reasonably accommodate applicants and employees?

Q5. What are the limitations on the obligation to make a reasonable accommodation?
Q6. Would you make any changes to this provision?
5. Provision 8 also indicates that the employment period shall terminate “for cause.” For the purposes of this Employment Agreement, “for cause” means termination of the Employee’s employment due to the Employee's gross misconduct resulting in substantial damage to the Employer, or due to the Employee’s willful and material breach of this Employment Agreement. (20 points)
A. From a legal standpoint, how can an arbitrator or jury determine that the employee is in breach of this provision?
B. List and FULLY EXPLAIN the seven factors, developed by Professor Carroll Daugherty, that comprise “just cause.”
C. Why are EACH of these factors important (provide a separate reason for each factor)?

6. In your reasoned opinion, should this employment agreement served as an exact template for all employment agreements? Why or why not? Give at least seven (7) reasons AND an explanation for each. (10 points).

Answer 1

4. Provision 8. Termination

Q1. Who is protected against employment discrimination? As it relates to disabilities.
Individuals with disabilities are protected against employment discrimination under various laws, the most notable being the Americans with Disabilities Act (ADA). This act protects qualified individuals with disabilities from discrimination in various aspects of employment, including hiring, promotions, job assignments, and termination. The protection extends to applicants and employees who have a physical or mental impairment that substantially limits one or more major life activities, those with a history of such impairment, or those who are perceived to have such an impairment.

Q2. What is "reasonable accommodation?"
Reasonable accommodation refers to any modification or adjustment to a job or work environment that enables a qualified individual with a disability to enjoy equal employment opportunities. This can include making existing facilities accessible, modifying work schedules, providing specialized equipment, or offering additional training. The accommodations should not result in undue hardship for the employer.

Q3. What practices and activities are covered by the employment nondiscrimination requirements?
Employment nondiscrimination requirements cover a range of practices, including:

• Recruitment, hiring, and firing processes.
• Job assignments and promotions.
• Training opportunities and access to benefits.
• Compensation and job evaluations.
• Policies and practices related to workplace accommodations and equal treatment of employees.

Q4. What kinds of actions are required to reasonably accommodate applicants and employees?
To reasonably accommodate applicants and employees, employers may need to:

• Modify work schedules or shift patterns to enable participation.
• Provide assistive technology or tools to facilitate job performance.
• Restructure job duties or reassign non-essential functions.
• Allow for additional leave or modified leave policies.
• Ensure accessibility in the workplace to allow for safe navigation.
• Offer training or mentorship programs that address any barriers faced by individuals with disabilities.

Q5. What are the limitations on the obligation to make a reasonable accommodation?
The limitations on the obligation to provide reasonable accommodations include:

• Undue Hardship: If accommodating the employee would result in significant difficulty or expense for the employer, it may be considered an undue hardship.
• Safety Concerns: If the accommodation would pose a significant risk to the safety of the employee or others, it may not be required.
• Job-related requirements: Employers are not obliged to eliminate essential job functions for an employee with a disability.
• Temporary vs. Permanent Accommodation Needs: If the need for accommodation is temporary or the disability is not significant enough to warrant a change, the employer may not have to provide it.

Q6. Would you make any changes to this provision?
Yes, changes could include:

• Clarification of Non-Discrimination: Explicitly stating a commitment to non-discrimination and adherence to ADA provisions regarding disabilities.
• Detailed Process for Accommodation Requests: Outlining a specific process through which employees may request reasonable accommodations, making it transparent and accessible.
• Training: Including a mandate for training managers and HR personnel on disability rights and reasonable accommodation processes to ensure compliance and awareness.
• Appeals Process: Incorporating an appeals process for employees who feel accommodations are not being adequately handled.

5. Provision 8: "for cause"

A. From a legal standpoint, how can an arbitrator or jury determine that the employee is in breach of this provision?
An arbitrator or jury would examine evidence such as:

• Documentation of Misconduct: Evidence of actions considered gross misconduct or breaches, such as recorded incidents, witness statements, or written warnings.
• Employer Policies: Company policies to determine if the behavior violated specific outlined conduct rules.
• Nature of Misconduct: Analyzing the severity of the misconduct in relation to the damage caused to the organization.
• Circumstantial Evidence: Understanding the conditions surrounding the claim, including the context of actions and intent of the employee.

B. List and FULLY EXPLAIN the seven factors, developed by Professor Carroll Daugherty, that comprise “just cause.”

1. Notice: Employees should be made aware of the rules and expectations of behavior.

   • Importance: This ensures that employees understand what constitutes acceptable behavior and the consequences of misconduct.

2. Fair Investigation: An investigation into the alleged misconduct should be conducted impartially and thoroughly.

   • Importance: A fair investigation allows all relevant evidence to be considered before any disciplinary actions are taken and ensures a just outcome.

3. Evidence: Sufficient evidence must exist to support the claims of employee misconduct.

   • Importance: Ensures that decisions are made based on factual information rather than assumptions or biases.

4. Consistency: The employer must impose discipline consistently for similar offenses.

   • Importance: Fair treatment is essential for maintaining employee morale and trust in the organization's disciplinary process.

5. Degree of the Penalty: The punishment must fit the nature and severity of the offense.

   • Importance: Ensures that employees perceive the disciplinary action as fair and proportional to the misconduct.

6. Mitigating and Aggravating Circumstances: Factors influencing the severity and context of the misconduct.

   • Importance: Encourages a holistic approach to disciplinary actions, considering circumstances that may lessen or heighten culpability.

7. Employee’s History: The past performance and behavior of the employee should also be evaluated.

   • Importance: Offers a complete view of the employee's pattern of behavior, allowing for fair consideration of prior conduct in determining an appropriate response.

C. Why are EACH of these factors important?

• Notice: Promotes transparency and accountability in the workplace, ensuring employees are aware of the consequences of their actions.
• Fair Investigation: Fosters trust in the management process, signaling that employer decisions are based on facts rather than bias.
• Evidence: Protects the rights of employees by ensuring that decisions are backed up by credible information.
• Consistency: Maintains morale and prevents perceptions of favoritism or discrimination within the workplace.
• Degree of the Penalty: Enhances fairness; employees are more likely to accept penalties that seem just and properly aligned with their actions.
• Mitigating and Aggravating Circumstances: Provides a nuanced understanding of situations, ensuring responses are appropriate to circumstances beyond mere actions.
• Employee’s History: Recognizes the full context of an employee’s contribution to the organization and can support fair corrective actions based on consistent past performance.

6. Opinion on Employment Agreement Template

While certain elements of the Employment Agreement may serve as a good foundational template, I would not recommend it as an exact template for all employment agreements for several reasons:

1. Lack of Customization: Every organization has different needs, cultures, and industry standards that necessitate tailored agreements to ensure clarity and compliance.

2. Absence of Key Employment Laws: The absence of references to federal and state employment laws and regulations might lead to unintentional violations if not adapted.

3. Clarity on Dispute Resolution: A section on clear mechanisms for dispute resolution, such as arbitration procedures, is crucial to prevent conflicts that may arise during employment.

4. Transparency Around Compensation Packages: It’s important for companies to offer transparency in salary structures and benefits to build trust and attract talent, which may not be fully addressed in generic templates.

5. Lack of Diversity and Inclusion Policies: Modern employment agreements should reference and support inclusivity and diversity initiatives that are pivotal to contemporary workplaces.

6. Inflexibility in Terms of Employment Period: Employment agreements should allow flexibility to adapt to changing organizational needs or employee circumstances. Strict end dates may not serve the dynamic nature of most workplaces.

7. Changes in Industry Standards: Employment norms and practices evolve. An agreement that doesn’t adapt to changing industry trends could become outdated quickly, leading to legal or operational risks.

In summary, while certain sections may provide helpful guidance, employment agreements must be detailed, dynamic, and tailored to meet the specific needs and regulatory requirements of the individual organization and its workforce for them to be effective and enforceable.