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Boilerplate – Key Words & Phrases

Published on September 4th, 2018 by Alan L. Sklover

Key Words

In contracts, what is meant by:

Boilerplate?”

Often people refer to certain provisions of an agreement as “boilerplate.” For example, it is quite common that a client will say to me “The agreement I need you to review is mostly boilerplate, so it should not take long to review.”

What do people mean by “boilerplate?”

Many years ago, “boilerplate” referred to extra metal plates that were wrapped around a boiler to limit damage if the boiler blew up. They were often unneeded and used more for show than for effect.

As commonly used today, “boilerplate” refers to provisions or sections of a contract (1) that are “standard,” (2) don’t much affect the contract’s “important points,” (especially those that refer to money matters), and (3) so, don’t really need to be reviewed carefully.

Beware: each of those three statements are wrong, more wrong, and even more wrong, and it’s better you learn that here and now, and not “the hard way.”

First, there is no such thing as a “standard” contract clause or “standard” contract language because every employee, every employment relation, every word and every punctuation mark in a contract or agreement is different, and so all need to be carefully read and considered. Missing a single “black dot” in a contract is the legal equivalent of missing a single “black dot” on an x-ray.

Additionally, when reviewing a contract, you must also consider what might be “missing” from it, and how what is “missing” might pose a threat to you and your interests.

Many times I have seen seemingly innocuous provisions in agreements that – intentionally or not – change the expressed intentions and effect of the contract.

Here are some common contract provisions that people often mistakenly call “mere boilerplate,” and in doing so endanger themselves and their interests:

  • “Section Titles”: This “boilerplate” provision usually – but not always – provides that the headings or titles of paragraphs have no effect in interpretation, but are just there for the sake of convenience. So why read it carefully? Because sometimes the drafter omits the tiny word “no,” and thus changes the entire meaning and effect of the section, to its very opposite, that is, that the section titles are of meaning, and thus need to be considered in interpreting the agreement. If you don’t read the full paragraph carefully, you may misunderstand what the agreement means, leading your mind and your analysis astray.

  • “Entire Agreement”: This “boilerplate” provision usually – but not always – provides that only the words inside this agreement count, that nothing outside of it makes any difference. Why is reading this carefully important? Because sometimes other documents are inserted into this paragraph to make it say, for example “The words in this agreement and in the non-compete agreement previously signed by the parties, are and will continue to be binding.” If you failed to see that italicized language, your “boat” may be “sunk” if you get a new job, and your new employer gets a letter alleging you are violating a non-compete agreement. OUCH!!

  • “No Unsigned Agreements or Amendments”: This provision, found in many employment agreements, usually says that no oral or unsigned agreements can bind the employer, but only written and signed agreements can do so. Sometimes, though, this is added, without most people noticing: “by the employer’s CFO or CEO.” So, if this agreement, the one that contains this very provision, is not signed by the CFO or CEO, but for example by the Head of HR, then this very agreement – this entire agreement – is not binding at all on the employer. Neat trick, no?

I don’t mean to make you paranoid, and I am not trying to scare you into hiring an attorney every time you have to sign a piece of paper, but I do want to shatter any myth you may have heard or been told, especially by HR, that any words or clauses of any contract can be treated casually.

So, please bear in mind, that when anyone says that “That paragraph is nothing but boilerplate,” or “Most of this agreement is boilerplate,” as soon as you can, you should put on your strongest reading glasses, and carefully read and consider every word of it. And each punctuation mark, too.

Don’t permit yourself to be misled, don’t mislead yourself.
Nor should you “save” five minutes of reading and lose, perhaps, your career, as a result.

Forewarned is forearmed.

Need to send a model memo or letter to make a request or complaint? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

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© 2018 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited

Make a “Go File” . . . Pleeeeeze

Published on May 1st, 2018 by Alan L. Sklover

File Folder

Workplace Negotiating Insight No. 16: Make a “Go File” . . . Pleeeeeze

Observe and Learn:

Life is unpredictable, and workplace life is especially unpredictable. You need to be prepared.

You don’t know when you might be laid off, offered a great job elsewhere, or be cut off from access to your office computer.

If anything good, bad or ugly happens to you at work, to protect yourself, your finances and your career, you REALLY need to have at hand a copy of the various written materials that seriously affect you. Otherwise, you will be “in the dark,” and effectively unable to stand up for yourself. At a critical time, being “in the dark” is not good.

What written materials? They include offer letter, employee handbook, bonus agreement, emails in which you were given promises or assurances, retention agreement, employment agreement, stock option award, non-compete agreement, etc., etc.

Trust me: If a real problem occurs, your computer access will be turned off before you know it. And, HR will not provide such materials to you when you most need them. Then you will not be able to negotiate.

And, too, if a prospective employer, recruiter or interviewer asks to see your present agreements, or review your non-compete, if you are unable to provide a copy, you may lose out on a terrific opportunity.

For example, can you start a great new job next month, or have you signed a “Garden Leave” provision in which you promised to give six months of notice when you leave?

So, it’s prudent that, little by little, you take home and keep a copy of all such written materials, and place them all into a “Go File.” Just as “emergency preparedness” authorities recommend people should create a “Go Bag” of valuable papers and prescription meds just in case they need to evacuate their homes without notice in event of fire, flood, etc.

Be wise. Be prudent. Be prepared.
Protect yourself by creating a “Go File.”
Pleeeeeze. You’ll be glad you did.

So many of our clients have failed to do so, and have suffered mightily because they didn’t.

Observe and Learn.
Then Negotiate.

Need to send a memo or letter? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

Interested in Membership? It’s free, and has advantages, including discounts on our products. Just [click here.]

Need a private telephone consultation? Just [click here.] Evenings and weekends can usually be accommodated.

© 2018, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

Workplace Negotiating Insight No. 10: No Road Signs

Published on August 1st, 2017 by Alan L. Sklover

eye

Agreements without Page Numbers, Section Headings, or Paragraph Letters are Trying to Hide Things from You.

Observe and Learn:

I consider myself a “contracts lawyer” because I review, analyze and negotiate so many employment agreements, severance agreements, non-competition agreements, retention agreements, settlement agreements, partnership agreements, and the like, day in and day out. And I have been doing this for 35 years.

Time and again, I feel like I can “see through” the spirit of an agreement or contract that I have been given to review, and time and again, it turns out, ?I am correct in one important regard.

A long time ago I noticed something puzzling: whenever I reviewed an agreement that contained no page numbers, no section titles, and no paragraph letters (or very few), almost always I also noticed something else: each of these agreements without the usual “road signs” contained one or both of the following:

    (a) a very dangerous or negative provision “hidden in the weeds,” that is, located in a place no one would look for it – as an example, a non-competition provision located in the middle of a paragraph about the address to send notices – or

    (b) something very important to my client – like the amount of bonus to be paid him or her – for some unknown reason, completely missing.

“Gosh,” I say to myself, “why is “this” located “there?” Or, “How could they possibly have forgotten that?” “Who could make such an error?” And, finally, “Could it possibly have been a mere error or coincidence?”

This reminds me of the time when, years ago, my wife rearranged our clothes closets. My socks ended up in the night stand, along with my ties. My shoes were, for some reason, hung up where my suits used to be, and my shirts were spread out in two closets and one drawer. To this day, many years later, I still have never found my favorite pair of blue socks. Somehow, though, seeming miraculously, my wife ended up with a lot more closet space than she had before!

The lesson is this: be very, very suspicious of agreements that do not have page numbers, section headings, or paragraph letters (or very few of them), what I call the “usual contract road signs.” Whether by error or intention – and I now presume intention – drafting an agreement this way is not conducive to people understanding the meaning and effect of the agreement, unless they have read it very carefully, many times, with a “suspicious eye.”

Read these contracts extra carefully, and if it is a contract important to you – which they all usually are – consider a legal consultation, as well.

Is this just my imagination? I don’t think so. Derived from my intuition? Maybe. Based on my experience? Definitely. Becoming more common? Absolutely.

Observe and Learn.
Then Negotiate.

© 2017, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.

Need to send a memo or letter? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

Interested in Membership? It’s free, and has advantages, including discounts on our products. Just [click here.]

Need a private telephone consultation? Just [click here.]

Mitigation – Key Words & Phrases

Published on July 10th, 2013 by Alan L Sklover

Key Words

What is the meaning of:

MITIGATION?

In employment matters “mitigation” is commonly used to mean two different things, in two different contexts.

First, in the context of employment litigation, “mitigation” generally means “to take steps to reduce the damages caused by the wrongful acts of others.” Some people call this “damages mitigation.”

For example, if an employee is terminated for a discriminatory reason, he or she can sue the employer, but he or she cannot collect financial damages in Court unless it can be shown he or she made a good faith attempt to replace the lost employment, and thus “mitigate” or lessen the lost income.

The law says, in effect, “The employee cannot sit back and relax, and let damages grow; that would be a waste to society.” This is called “the employee’s duty to mitigate.” “Damages mitigation” is relevant in 100% of employment Court cases.

Second, in the context of severance paid to laid off employees, “mitigation” generally means “your severance payments stop if and when you start a new job.” Some people call this “severance mitigation.”

For example, if the employee is entitled to 12 weeks of continued salary as severance, if he or she starts a new job in the eighth week, the severance payments cease.

The idea behind “severance mitigation” is actually quite similar to the idea behind “damages mitigation,” that you should not gain more from the employer than you actually lost. In my experience, “severance mitigation” is found in perhaps 15-20% of severance agreements, and is becoming less common.

Surely, there are arguments to be used against “mitigation” in either context. The important thing is to be aware of this concept, look for words and phrases in agreements and other documents that call for “mitigation,” and plan your life accordingly.

Now that you understand the concept, do all you can to “navigate” the “employee’s duty to mitigate,” whether in Court or in severance agreements.

© 2013 Alan L. Sklover. All Rights Reserved. Commercial Use Strictly Prohibited

“Offer Letter differs from Employment Contract; which controls?”

Published on June 28th, 2013 by Alan L Sklover

Question: What if there is an inconsistency and difference between the job offer you’ve signed and the employment contract? The salary, leave credits and other benefits are not the same.

                                                                                                                                  Kath
Manila, Philippines

Answer: Dear Kath: It is more common than you might think that I am contacted by people who received “promises,” “assurances,” or “representations” during recruitment sessions, job interviews, or in offer letters that are not later fulfilled, or are “changed” by employment contracts or other documents. Which controls, and what can you do? These are my thoughts: 

1. An “offer letter” and an “employment contract” are both kinds of contracts, and are governed by their words, not their titles. “Offer Letters” are just what they sound like: an offer of employment on certain terms and conditions, written by the employer in the form of a letter, which can be “accepted” by signing and returning it to the employer, and then binding on both parties.   

“Employment Contracts” are essentially the same: they, too, are in writing and contain terms and conditions of employment; once “offered” and “accepted,” they are binding on both employee and employer. They are usually a bit more formal, a bit longer, and often with a different title, but those things don’t change their essential nature: like offer letters, they are contracts. 

So, Kath, you seem to have two “contracts.” 

Those interested in the general subject of “Offer Letters” might want to review a newsletter I wrote entitled “Offer Letters – What to Look For, What to Look Out For.” To do so, just [click here.]

Prevent problems early so you don’t have to solve them later. To do all you can to make sure there is no confusion in the major terms of your employment, we offer a Model Letter Confirming Terms of Job Offer by Employer. “What to Say, and How to Say It.™” To obtain a copy for your use, just [click here.] Delivered by Email – Instantly! 

2. If you and your employer have signed the Offer Letter, but NOT YET SIGNED the  Employment Contract, now is the time to prevent a problem by calmly pointing out the differences between the two. From your letter, I cannot determine whether you have signed just the Offer Letter, and are now examining the Employment Agreement, or whether you have signed both. If you have not signed the Employment Agreement, but are now examining it carefully before signing it, “my hat is off to you.” Now would be the best time to raise the issue of the differences, and do what you can to make the two documents consistent with one another.

To clarify important – but not major – terms of your employment, such as (a) whether you will be required to sign a non-compete, and (b) when your health insurance coverage begins, we offer a “Memo to HR to Clarify Benefits and Burdens” of new employment.  “What to Say, and How to Say It.™” To obtain your copy to adapt and use, just [click here.] Delivered by Email – Instantly!

3. If you and your employer have SIGNED BOTH the Offer Letter AND the Employment Contract, chances are that the Employment Contract “predominates” over the Offer Letter, for two reasons. In my experience, most “Offer Letters” are signed first, and then, if an Employment Contract” is desired by the parties, it is signed second. If that is the case, there are two reasons – both recognized by the law – to expect that the Employment Contract “governs” and “predominates” over the Offer Letter.

First, most Employment Contracts have what is called an “Integration Clause,” or “Entire Agreement” provision. This is what they usually say, “This agreement constitutes the entire agreement between the parties, and replaces and supersedes all other agreements, understandings, representations and contracts.” If your Employment Agreement says that, and it was signed second, it definitely “governs” and “controls.”

Second, unless it is expressed in words to the contrary, there is a general presumption made in contract interpretation that “If a second agreement or contract is signed by two parties, if it is different, then it is meant to be different, and is meant to govern and control.” Frankly, this is a rule of contract interpretation that is based in common experience and common sense.

Still, words that are expressed are the primary focus in contract matters.  

4. When we look at contracts, we look first at “what was expressed,” and if we find confusion, lack of clarity, or inconsistency, we then look to “what did the parties likely intend?” Kath, from what you have written, it seems to me that your “two contracts” with your employer are, at least in some respects, consistent with one another, for examples, that both identify you as the “employee,” and both identify your employer as the “employer.” My guess is that both of your “two contracts” also state that you are to work in the Philippines. So, as to certain terms and provisions, your “two contracts” seem to be consistent with one another.

Where your “two contracts” differ in what each of them expressed – in salary, leave credits and other benefits – we must look at the two parties’ respective intentions – what, in effect, they meant.

The differences could be the result of a mistake by one of them in, for example, the typing of the agreement. Or, the differences could be the result of one of the parties simply not noticing that changes were made in the later “contract,” and simply signing it, unaware of the changes. The differences could even be the result of a lapse in memory of what was discussed.

There are no specific things to look at to determine parties “intent” in their contracts, but we look to all of the relevant facts, events and circumstances, including, among others, such things as (a) email communications, (b) postings for the position, (c) the employer’s usual practices and policies, (d) statements by recruiters or in interviews, and (e) plain old common sense.

We offer a 152-Point Master Checklist of Employment Negotiation Items to help you make sure you have not (a) forgotten to ask for anything, (b) failed to raise any issues, and (c) that your interests are protected in your offer letter and/or employment contract. To obtain a copy, just [click here.] Delivered by Email – Instantly! 

5. So, to summarize, these are the steps to review to determine your answer:

(i) If they are different, were they both signed? If not, now is the time to request consistency;
(ii) If they were both signed, does the Employment Contract contain an “integration clause?
(iii) If they were both signed, was the Employment Contract signed second?
(iv) If the words expressed in the contracts don’t give us a clear answer of what was intended, we then look to such facts, events and circumstances “outside the contracts,” including among others, (a) email communications, (b) job postings on job boards, (c) correspondence by recruiters, (d) the employer’s usual policies and practices, and even (e) what is most common in the industry.

As you can see, Kath, differences and discrepancies between Offer Letters and Employment Contracts can be vexing problems to solve. That said, in my experience, keen observations, sensible thoughts, and good faith usually reach fair resolutions. If you have the educations, skills, training, experience and – most importantly – positive attitude that the employer seeks, anything is possible.

My Best,
Al Sklover

P.S.: If you would like additional attention and assistance with your workplace opportunity or problem, and how to best deal with it, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. If you would like a consultation, just [click here.]

Help Yourself With These and Other
Unique NEW JOB Materials

New Job 3: Confirming Basic Terms of New Job Offer
New Job 5: Model Response to Receiving a New Job Offer
New Job 7: Checklist of New Job Items to Consider Requesting/Negotiating
New Job 13: Six Important Elements to Request Be In Your Expected Job Offer
New Job 15: Model Request for Sign-On Bonus
New Job 16: Two Model Memos to Protect Your Book Of Business ("B.O.B.")
Job Issues 5: Model Response to Request That You Sign a Non-Compete

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© 2013 Alan L. Sklover, All Rights Reserved.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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