By G. A. Finch
It is commonplace for an executive to ask for my legal advice when the executive is contemplating leaving an employer or the executive has been terminated. Of course, I ask for a copy of the executive’s employment agreement, if any, to analyze the rights, duties, and obligations that the executive and employer respectively have under the agreement.
Lo and behold, there are times that I get a copy of the agreement sans some or all of the exhibits or referenced documents. It becomes obvious that the executive did not have an attorney review the executive’s offer letter or employment contract and ensure all the exhibits and referenced documents are accounted for.
Many employment offer letters or employment agreements contain critical, substantial exhibits, or documents that are incorporated by reference. Typical ones include provisions pertaining to restrictive covenants like non-competition, non-solicitation and confidential/proprietary information. Other provisions may pertain to an arbitration requirement, an assignment of intellectual property and inventions, conflicts of interest policies or references to a company’s rules, policies, procedures or handbooks. In any event, the executive does not have the exhibits or access to particular policies and would have to ask the company’s human resources department for copies.
Not having the relevant exhibits or documents puts the executive in an awkward position as well as disadvantages the executive.
More importantly, an employment agreement without exhibits and referenced documents means the executive has an incomplete document and the executive does not know to what all the executive has agreed. The executive should not sign an agreement under such circumstances. It is like “buying a pig in a poke.”
Upfront diligence and thoroughness prevent back-end problems.
Copyright © 2020 by G. A. Finch. All rights reserved.