Your Career and the Right Employment Agreement

In part one of this two part series, I went over some items that employers should focus on in an effective employment agreement. These included the need for a good employee handbook, policies on equal opportunity and harassment, considerations for social media postings and email, and the definition of contract employment.

Here in part two, we will examine the other side of the agreement, focusing on items that protect the interests of the employee.

Detailed job duty description: Both sides will want to have a clear understanding of what is expected of the employee in their new job. The agreement should include clear language describing the employee’s duties and the employer’s expectations of the job. This will help prevent any confusion or misunderstanding regarding job performance down the line.

Employee Handbook: This document is important to the employee as well as the employer. The employee should examine the handbook closely to determine how job performance will be monitored and what the various company policies are that would need to be followed.  Understanding what’s in the handbook is a good way for the employee to ensure that they do the right things at work to keep their job.

Access to employment file: The employer will be keeping many records about the employee while they work there; and the employment agreement is a good place to set forth what the employee’s access to those records will be, if any. The employer may have specific guidelines for how and when the file can be requested by the employee and whether it’s an open record or maintained for the sole use of management.

I usually recommend that the employee have access to their own file, but it’s also important to spell out who else can see it. For example, do co-employees have the ability to view the file? It’s usually best that access is limited solely to upper level management for purposes of evaluation, promotions, a raise, etc., and that this limitation be spelled out in the employment agreement.

Attendance and leave policies: This is another area where it is best to have documentation of what’s expected. Employees should be mindful of taking time off in case of emergency, family matters, illness, etc. By examining these topics at the beginning of employment, they can help prevent conflicts with their employer in the future when unforeseen events happen.  

Alternative dispute resolution: It’s best that every employment agreement provide that before an employee can sue the employer for misconduct or discrimination, the two sides should go to mediation.

Another strong recommendation for this section is that employers, before termination of an employee, go to mediation to resolve the perceived disciplinary problems. This approach can significantly reduce litigation costs as parties can first sit down and try to talk through issues rather than immediately resorting to the courts.

Confidentiality agreement: Both parties will want to have this language in place. This is simply an agreement between employer and employee that neither side should disclose confidential information to third parties.

Termination: It may not be the topic one wants to consider when starting a job, but it’s good to at least keep it in mind — how can the employee be terminated? Can one individual manager terminate the employment; or does the decision go to upper-level management? This should be clearly outlined in writing for both sides. It’s usually best that no single manager be able to dismiss an employee — upper level management should be in charge of this — but it’s not always the case, so setting it out in the employment agreement eliminates confusion should the event ever come to fruition.

Severance pay upon termination for no-cause: Generally when an employer wants to retain employees with a certain skill or expertise, they will offer some incentive to stay with the company. A severance package is a good way to accomplish this. Discuss with the employer what will happen in certain scenarios. For example, should the employee leave voluntarily, will they still get a severance package — then make sure language covering all the possibilities is included in the employment agreement.

If you are an employee examining an employment agreement and need assistance, contact my office. We can discuss the particulars of the employment agreement that is being considered and how it could affect you and your career.

Disclaimer: Nothing in this posting should be construed as legal advice or the commencement of an attorney-client relationship.  The opinions are solely those of the author acting in his capacity as an author, not an attorney.

Choosing an Employment Agreement that’s best for your Business

In the employer-employee relationship, creating a thorough employment agreement is important not only for the employer, but also the employee.

This is part one of a two-part series in which I will review some provisions that should be considered for both businesses and employees when entering into an employment agreement. In this article, we will examine the employer’s point-of-view and items that should be included to protect their best interests.

Employee handbook: The handbook should cover the policies, terms and conditions that an employee is expected to adhere to while working at the business. Important topics like work hours, attendance policies, sick time, and vacations should be covered. The handbook is also a good place for employers to plainly state to employees that both parties have entered into an at-will arrangement, meaning that the employee can be terminated for any reason or no reason whatsoever, at any time.  Likewise, the employee can terminate the employment arrangement at any time for any reason, or no reason whatsoever.

Policy on equal opportunity & harassment: This is where the employer conveys that there will not be any discrimination based on race, color, religion, gender, sexual orientation or national origin. This is a sound business practice, and ensures compliance by the employer with the laws of the state of Washington. Presenting this policy helps protect employers against lawsuits while demonstrating to employees that the business is fair and will not tolerate discrimination.

Progressive discipline policy: An employment agreement should include a progressive discipline policy. That is, if there is misconduct or a complaint about an employee, proper procedures should be followed to ensure the employee is given an opportunity to correct the behavior.

In this regard, the employer is protected from harmful acts by the employee. Issuing a warning is an opportunity to correct the behavior or conduct, but if the behavior or conduct is not corrected, then the employee could be terminated. There should be a firm understanding on both sides what the conduct is, as well as what the practices are for warning an employee of misbehavior, misconduct, and problems with their employment.

Email/Internet/social media policy:  With the expansion of social media, policies with regards to email, Facebook, Twitter, and other social media postings should be addressed. No information gleaned about the employer or clients through the course of employment should be shared on social networking sites at any time. With regards to email, it should be clearly stated that the employee should not expect a guarantee of privacy using a workplace email account. In other words, employers can look at individual work email accounts at any time.

Full-time employees vs. contractors:

More often than not, employers want to retain people as contractors rather than employees. They do this to save on employment taxes, but solely relying on this arrangement can become problematic, especially if the work is closely overseen. As a business, it’s very important that you inform any independent contractors that they are free to work their own hours and at a location of their choosing.

Documentation of job performance: Employers need to keep documentation of each employee’s job performance for discussion during periodic performance reviews. Employers should clearly lay out the specifics of such reviews. For example, at what interval will they be performed; who should be present (certain members of management); will evaluations be given in writing or orally, etc. A detailed written job description is also needed not only for performance reviews, but also so that both parties have a clear understanding of what the duties and expectations of a position are.

Severance pay: Employers need to find ways to retain valued employees and their beneficial skills and expertise. A severance package can be a good incentive for an employee to stay with the company. However, it should be conveyed that if an employee leaves voluntarily, he or she will not be awarded a severance package.

Confidentiality agreement: Both sides should automatically agree that confidentiality is essential to their best interests. In my opinion, the employer and employee should always agree in writing to keep information between them confidential, and out of the hands of a third party.

In part 2, I’ll review items that pertain to employees and what they should be mindful of when reaching an employment agreement.

If you have questions about employment agreements, please feel free to contact my office. We can discuss the employment agreement that you are considering and how it could affect you and your business.

Disclaimer: Nothing in this posting should be construed as legal advice or the commencement of an attorney -relationship.  The opinions are solely those of the author acting in his capacity as an author, not an attorney.