Common Clauses and Provisions Archives

Voluntary – Key Words & Phrases

Published on February 19th, 2019 by Alan L. Sklover

Sklover Working Wisdom keywords and phrases

Be on the lookout for . . .

“Voluntary,” as in “Voluntary Departure,” “Voluntary Resignation”
or “Voluntary Waiver”

You’re quite likely to find the word “voluntary” in several work-related legal documents. If you do notice it, that word may be very advantageous to you.

Generally speaking, “voluntary” means “done on one’s own free will.” It is synonymous with discretionary, unforced and optional. In legal documents, it often suggests that the act described was not required, not coerced, and not demanded.

Let’s say that, according to your employer’s Annual Bonus Plan, you are not entitled to your annual bonus if you “voluntarily” resign before the day it is paid. What if, two weeks before bonus payment date, you resigned and left your job in fear that your boss might beat you up in one of his infamous uncontrolled rages?

Was your departure “voluntary?” I’d say no. Are you entitled to your annual bonus? I’d say yes, although I’m confident that most employers would disagree.

You have a strong, reasonable and likely winning argument that the bonus is yours, so long as you spot, appreciate and point to the word “voluntary.”

In Repayment Agreements, you might promise to repay your employer in, as examples, a Sign-on Bonus Agreement, a Relocation Expenses Policy, or a Tuition Assistance Plan if you “voluntarily” leave before two years of service. What if you left earlier than that because, all of a sudden, your salary was reduced by 40%, and your family likes to eat three meals a day? (Some kids demand 4 or 5!!)

Is feeding your hungry family “voluntary?” I’d say No. Was your departure to take a better paying job truly “voluntary?” I’d say No. For this reason, you have a very good, and probably winning, basis to argue, with likely success, that your repayment is not required.

So, in this circumstance, too, you may very well not have to repay any sign-on bonus, educational assistance, etc., so long, that is, as you spot, appreciate and raise in your defense the word “voluntary.”

The same goes for whether a Non-Compete Agreement is valid or void, according to its own words. If the non-compete says it is valid if you “voluntarily” leave your job, and you can show that you are allergic to the new paint used throughout the office, then it is void as to you, so long, that is, as you spot, appreciate and raise the word “voluntary.”

There are many other legal documents that may contain the word “voluntary.” Look for “voluntary” in any and every workplace document, whether in an agreement, a company policy, an Employee Handbook, Stock Award, or other document.

You may be VERY GLAD you did.

Need a model memo or letter to transmit 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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© 2019 Alan L. Sklover All Rights Reserved and Strictly Enforced.

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.]

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 Strictly Prohibited

Incorporated by Reference – Key Words & Phrases

Published on March 27th, 2018 by Alan L. Sklover

Key Words

What is the meaning of:

Incorporated by Reference?

In many workplace agreements, we see language that says something like this:
“This Agreement and the Confidentiality Agreement signed on November 24, 2021, which is hereby incorporated by reference, constitute the entire understanding between the parties.“

In this way, two agreements —one “new,” and one “old”— are combined into one. The simple phrase “incorporated by reference” makes it necessary to review not only the “new” agreement in your hand, but also the “old” agreement (or agreements) now being incorporated into it, which you may have signed decades ago.

So, for example, if you are given a Severance Agreement, and it “incorporates by reference” a Non-Competition Agreement you signed on your first day of work nine years ago, without realizing it, you may again be agreeing to a Non-Compete restriction that may not make sense now.

“Old” agreements may have made sense to sign then, but may not make sense to sign again, now.

Also, years ago you may not have had sufficient leverage to refuse to sign that “old agreement,” but you may now have sufficient leverage to refuse to re-sign it.

As another example, if you are given a new and seemingly generous Bonus Agreement, and it “incorporates by reference” a Reimbursement Agreement you signed six years ago, it’s just possible that that “new” bonus may just not be worth it.

In a nutshell, keep an eye out for the phrase “incorporated by reference,” and if you see it, review each of the other agreements it combines by “incorporating by reference.” Say to yourself, “Is this a wise thing to do?” Frequently, the answer is “No.”

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.]

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 Strictly Prohibited

The Ambiguities Clause . . . What’s That?

Published on March 20th, 2018 by Alan L. Sklover

 
“Close your eyes to see clearly.”

– Ancient Zen Saying

ACTUAL CASE HISTORIES: Something I have learned over decades of being an attorney is that the law is mostly common sense, a kind of practical wisdom, applicable to different situations, handed down from one generation to the next. Despite the many, varied and often deserved criticisms of the legal system, overall, it works. I believe that more each day.

Here is an illustration: If a contract provision seems unclear, then Courts will, as a general rule, interpret that provision against the interests of the party whose lawyer drafted it. This is referred to as the “Interpretation Against the Drafter Rule” of contract analysis.

What is the common sense underlying the “Interpretation Against the Drafter Rule”? It rewards clear contract drafting, and punishes lazy or sleazy contract drafting, so that, hopefully, there will be fewer controversies over what contracts mean, and less need for the time, attention and costs of attorneys and Courts. This is a good example of common sense, applied to a common problem, in the common interest.

To get around the “Interpretation Against the Drafter Rule,” some lawyers insert a clause into the contracts they draft that provides, in effect, “The parties agree that no one party drafted this contract, but we both contributed to it, and, so, the ‘Interpretation Against the Drafter Rule’ doesn’t apply to this contract.” This kind of clause, most often called an “Ambiguity Clause,” is nothing more or less than an attempt to evade the “Interpretation Against the Drafter Rule,” and thus accountability for their sloppiness or sleaziness. The Ambiguity Clause seeks to take away risk of the consequences of ambiguity from the shoulders of the drafter, and place it on the shoulders of the non-drafter.

Since most workplace agreements are drafted by employers’ lawyers, and not by employees’ lawyers, Ambiguities Clauses are especially common in workplace agreements. Thus, it is wise for employees and their lawyers to watch out for the Ambiguity Clause, and to consider taking certain precautions to address the additional risk it represents.

LESSON TO LEARN: This is what a typical “Ambiguity Clause” looks like:

    Ambiguities: The parties agree that this agreement was drafted by the lawyers for both parties, and so neither party can be alleged to be the primary drafter. Accordingly, any rule or law of contract interpretation that would require interpretation against the interests of one of the parties is inapplicable when interpreting this agreement, and in all events.”

Here is another common version of an “Ambiguities Clause,” with a different title:

    Construction: The parties acknowledge and agree that any statute, principle, or rule of contract construction that requires that ambiguities are to be resolved against the drafting party, shall not be employed in the interpretation of this Agreement.”

If you notice an “Ambiguities Clause” in any workplace agreement you are being asked to sign, now you know what it means, and you are aware that it being there leans a bit against your interests, and so you are well-advised to be on guard a bit more than usual for ambiguities in the agreement, before signing it.

WHAT YOU CAN DO: If you are considering signing a workplace agreement of any kind, it is always prudent and wise to read it over carefully before you sign it. If it contains an “Ambiguities Clause,” be even a bit more cautious. If you notice an “Ambiguities Clause” in the agreement under your consideration, here are some ideas, tips and thoughts to bear in mind:
Read the rest of this blog post »

Garden Leave . . . Is Negotiable

Published on February 27th, 2018 by Alan L. Sklover

 
“Logic will get you from A to B.
Imagination will take you everywhere.”

– Albert Einstein

ACTUAL CASE HISTORIES: A “Garden Leave” obligation is a promise that you will remain on your job, after resigning, for 30, 60, 90 or more days prior to departing during which (a) you may be required to work in the office, (b) you may be told to remain at home “tending your garden,” (c) in either case, while you are subject to termination at any time, at the discretion of employer.

For perhaps 20 years I have seen “Garden Leave” provisions in offer letters, employment contracts, bonus agreements, retention agreements, and almost every other kind of workplace agreement. Many clients chafe at these restrictions, as they both delay their moving on to hopefully “greener pastures,” and frustrate the wishes and plans of their would-be next employers.

A few years ago I began to suggest to clients facing Garden Leave restrictions that they attempt to negotiate to reduce the duration of their Garden Leave’s restriction. Increasingly, clients who try to do so are meeting with success. All the time? No. But with increasing frequency? Yes.

I now suggest to every client who is planning to resign from a job, but facing a long Garden Leave restriction, that they attempt to reduce their Garden Leave period through negotiation. Why not? There’s little to lose and so much to gain.

LESSON TO LEARN: With few exceptions, everything in life – and that includes work life – is negotiable. And by negotiation, I mean motivating your manager or employer to view what your seek to be in their interests as well as your own.

The same first principle that governs any negotiation – that a person will likely pursue what that person perceives to be in his or her best interests – governs this negotiation, as well. If you can change the way a person perceives her or his own interests, then you can motivate her or him to do just what you want them to do. Some people say, “Oh, gee, that’s just Sales 101 . . . that is, if you buy a certain toothpaste, you will have a better social life. ” Well, what applies to toothpaste applies to Garden Leave provisions, too.

And there’s no downside to making any request, so long as you present it with “The Three R’s”: (1) Be Respectful. (2) Be Reasonable, and most importantly, (3) accompany your request with a compelling Rationale.

As I have many times said, “You can lead a horse to water, but you cannot make it drink . . . but if you put the right “salt” into its mouth, it will feel thirsty, and, on its own, it will look for a stream.” In the Garden Leave context, all you have to do is decide who is the right “horse,” and what is the right “salt.”

WHAT YOU CAN DO: When planning to resign, if you are subject to a Garden Leave obligation, you should consider requesting that its length be reduced. Here are some thoughts that might help you do so:
Read the rest of this blog post »


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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